By Sara Pitcher
Before addressing non-party discovery, it is helpful to understand what discovery is.
Discovery is defined as:
1. The act or process of finding or learning something that was previously unknown.
2. Compulsory disclosure, at a party’s request, of information that relates to the litigation.
3. The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production.
4. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted. Black’s Law Dictionary, 498 (8th ed. 2004).
In a family law case, discovery may involve interrogatories, depositions, requests for admission, and/or requests for production. These are tools designed to discovery the information necessary to prepare for a hearing or to prepare or respond to a settlement proposal.
Interrogatories are written questions that are submitted, and the responding party must submit their written response, which is signed under oath.
Requests for production are written requests that documents or tangible things be produced for inspection and review.
Requests for Admission are written statements, which must be responded to with an admission, objection, or denial. These are again signed by the responding individual or party under oath.
Finally, a deposition is the asking of questions, which are answered orally and recorded by a court reporter, under oath. The transcript of a deposition may be used at a later hearing.
These tools are often helpful in gathering information from the opposing party or other non-parties to the case. A non-party is simply an individual who is not the named Petitioner or Respondent in the case, i.e., not a party to the case.
Since the individual is not a party to the case, it may be difficult to imagine how they would be served with discovery requests relating to the case and forced to respond. However, it is important that information be able to be gathered so that each party can make his or her case.
Often times in divorce cases, non-party Request for Production are sent to employers for retirement account information, banks or credit card companies for financial statements, medical providers for a parties’ medical records, and other similar institutions.
These are not always sent in an adversarial manner. Even in cases where the parties are agreeable and negotiating a settlement, it may be necessary for one party to submit these non-party requests in order to obtain information that neither he nor opposing party is in possession of.
For example, the husband may need to submit a request for his retirement account statements to ascertain the account balance at the time the divorce case was filed.
Alternatively, it may be necessary to submit a request for the wife’s retirement information if she is not in possession of it.
Non-party discovery requests may also be submitted in more adversarial situations, such as those where the wife is claiming to be in need of spousal maintenance due to a medical condition.
In such a case, the husband may submit non-party requests (along with a HIPAA waiver executed by the wife) to the wife’s medical providers to obtain her medical records to rebut her claims.
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Non-Party Discovery Procedure
If a party wishes to send non-party requests, the intended request must be sent to the opposing party, who will have 15 days to raise an objection. It may be possible for the other party to waive this waiting period if they are in agreement and approve of the requests.
If no objection is received in the time specified, then the requests are sent to the non-party. The non-party will then have 30 days (plus three days for mailing) to respond to the requests. The requests, if sent to a business, must be sent to the registered agent on file with the Secretary of State.
If the responses are not timely received, the party sending the requests must follow up in an attempt to informally resolve the discovery dispute and determine when the responses can be expected. This must be done in compliance with Trial Rule 26(f). If the responses are still not provided, the party may then file a Motion to Compel with the Court.
The non-party may be permitted to request reimbursement for the costs associated with the production of the information, such as copy costs.
The use of non-party discovery can be a very helpful tool in allowing the parties to gather the necessary tools to prepare for a hearing or settlement.
If you have any questions about these methods of discovery, you should contact a men’s divorce lawyer who practices in the area of domestic relations law, such as the family law attorneys at Cordell & Cordell.