Discovery

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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.

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Continue Reading The Discovery Dance

Essentially, the Appellate Division confirmed that this is not a came and gamesmanship and playing hide the ball cannot be permitted. Most cases will settle but if a matter is going to be tried, the parties are entitled to have the evidence necessary to either prove or disprove issues at trial. Nothing less is acceptable. The search for the truth must be preserved and the court cannot permit the obfuscation of facts held solely by that party by allowing anything less than full discovery of those facts. Moreover, if that party will not provide discovery, court should, as is their right, draw adverse inferences against that party. The Court should not hurt the other party by shifting the burden of proof to that party and at the same time preventing that party from meeting their burden by obtaining the critical discovery.…
Continue Reading The Next Time the Judge Says You Can't Have More Discovery, Remind Her of This Case

Oftentimes, when a party to a divorce action is a partner in a small company or partnership, suspicion falls to the other partner or business. I am often told by my client that he or she is sure that the other partner is helping hide money or engaging in some behavior in order to lower the value of, or the income from the company. Not surprisingly, the question then arises of whether the company itself or the other partners can be brought into the divorce action. Except in rare circumstances, the answer is generally no.

The rules of court govern when a non-spouse can be joined to a divorce action. First, in order to bring in a non-spouse, the moving party must show that the company or partner is what is known as an “indispensable” party. According to Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995), “courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.” This means that a corporate party may only be joined if it would be difficult, if not impossible for the case to proceed without the addition of the corporation. This is usually not the case. Even when the company or other partners are not actual parties to the divorce action,   the Rules of Court provide ample mechanisms for litigants to obtain discovery from non-parties, see, e.g., R. 1:9-1 (issuance of subpoena to non-party for attendance of witness); Rule 1:9-2 (issuance of subpoena to non-party for production of documentary evidence); Rule 4:14-7 (issuance of subpoena to non-party to conduct discovery depositions).

The Rules are designed to make sure that all necessary information is available to the court so it can make a fair decision in the divorce. Thus, complete financial records of the company are generally available for review. The rationale behind this makes sense. If at any time it could be said that a company or business partner is an interested party due solely to the fact that one of its members is getting a divorce, it would throw the entire business world into disarray, not to mention an already over-taxed family court system.

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Continue Reading Concerns About the Actions of a Business Partner in Divorce

Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina.  I had the occasion, last week, to read her excellent article on her blog entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant’s and Clients."  I thought that the article was so good that I asked Melissa if I could re-post it as a guest blog on this blog, and she graciously agreed.  Her article is as follows: 

In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account. Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel. On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account. The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent. In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence. One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case. However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook. One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting his client’s private (and irrelevant) information.
 

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Continue Reading Read Melissa Brown's Interesting Article Entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant's and Clients"