Some times, the most basic part of the case, discovery, can often be the most frustrating part. In most cases, some amount of discovery is needed to do the due diligence necessary to bring a matter to its conclusion with some sense of comfort that the issues have been adequately addressed. In complex cases, especially cases where there are businesses and other significant assets to value, the failure to complete discovery often stops a case in its tracks. I have a few cases now where the business owner is simply stonewalling discovery.
In your typical case, you may serve interrogatories (written questions to be answered under oath) and a document request. Though per court rules, the responses are due in 60 and 45 days respectively, the rules are most often honored in the breach. Is it right? No. But most people figure that they can get away with ignoring the rules because the deadlines to answer will be set at the first Case Management Conference. And even when you complain that your discovery is now over due or due shortly, inevitably, the deadline is set for 60 days in the future, give or take.
Then what happens. People ignore the new deadline. When you finally get the discovery, you often get half-hearted, incomplete answers and some but usually not all of the documents requested. While many banks and credit card companies let you go on line and print out a year or several years of past records, and certainly will provide them to you when you ask, most people don’t ask and just send an incomplete production which only serves to delay the process and cost both people more money (they don’t think about that when the complain that the process takes too long and costs too much). They may offer to sign authorizations so that you can get the documents yourself. More delay – more expense shifted to the other side. In response to the weak answers, sometimes you may serve a request for more specific answers, only to get more drivel, if you get a response at all.
This is the discovery dance. Several months go by and basic information still isn’t exchanged. Sometimes it is so late in the game that a judge says you can’t do any more discovery. As we have blogged before, where someone has sandbagged a case, that argument shouldn’t fly.
So what do you do? Do you make a motion to compel only to anger the judge who is already over burdened? Do you just take a deposition and force the issue on a record? When you do make the motion, the other side will file a knee jerk cross motion concocting things that your client didn’t provide. I have a case now where there have been three orders compelling the discovery, some of which has been due for more than a year. Each time we go to court to get the things we have been waiting for for months, the other side makes demands for more and more things – as if there is some equivalency with the demands that have been outstanding for a year vs. theirs that have been outstanding for a few days (typically made knowing that you will be returning to court so better to say that you need information from the other side too. The discovery dance in action again.
To avoid the dance, I often serve subpoenas early in a case to get bank, brokerage, credit card, employment/income/benefit/deferred compensation information directly from the source. While the up front cost may be greater, the ultimate cost in curtailing some of the discovery dance is usually less. But you can’t always get everything directly, especially when you want to get the records of the other party’s business.
But if you have to make the motion, make sure you clearly set forth what you asked for, when you asked for it, and what was and wasn’t produced. If you (or your expert) really need something, don’t settle for no. If the other side wont produce it, ask the court to make adverse inference and preclude the other side from offering contrary evidence.
Bottom line, if you are forced to dance, be the better dancer.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.