Inns Presentation TOPIC: DISCOVERY HOW DO WE GET INFORMATION FROM A - - PDF document

Inns Presentation TOPIC: DISCOVERY‐ HOW DO WE GET INFORMATION FROM A NON‐PARTY Hypothetical: Husband and Wife are married for 17 years. Husband files for divorce on January 1, 2018. Upon consulting with the Wife, Wife discloses that Husband has been having an affair for the past (2) years. Wife believes that Husband has been taking his mistress on lavish vacations, purchasing jewelry for her, and added her to his bank

• account. How do we discover this information from the mistress?
• 1. If Husband is unwilling to disclose this information, which he most likely won’t,

then first step would be to take his deposition to find out information through him

• a. Deposition Rule: 1.310
• i. (b) Notice; Method of Taking; Production at Deposition.
• 1. (1) A party desiring to take the deposition of any person

upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena shall be attached to or included in the notice.

• 2. (2) Leave of court is not required for the taking of a

deposition by plaintiff if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken before expiration of the 30‐day period under subdivision (a). If a party shows that when served with notice under this subdivision that party was unable through the exercise

• f diligence to obtain counsel to represent the party at the

taking of the deposition, the deposition may not be used against that party.

• ii. The notice to a party deponent may be accompanied by a request

made in compliance with rule 1.350 for the production of documents and tangible things at the taking of the deposition. The procedure of rule 1.350 shall apply to the request.

• 2. After taking his deposition, then take the mistress’ deposition. The most useful

tool would be a Subpoena to Take Depo with Documents

• a. Rule: 1.410(e) Subpoena for Taking Depositions.

• i. (1) Filing a notice to take a deposition as provided in rule 1.310(b)
• r 1.320(a) with a certificate of service on it showing service on all

parties to the action constitutes an authorization for the issuance

• f subpoenas for the persons named or described in the notice by

the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena must state the method for recording the testimony. The subpoena may command the person to whom it is directed to produce designated books, documents, or tangible things that constitute

• r contain evidence relating to any of the matters within the

scope of the examination permitted by rule 1.280(b), but in that event the subpoena will be subject to the provisions of rule 1.280(c) and subdivision (c) of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written

• bjection to inspection or copying of any of the designated
• materials. If objection is made, the party serving the subpoena

shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was

• issued. If objection has been made, the party serving the

subpoena may move for an order at any time before or during the taking of the deposition on notice to the deponent.

• ii. (2) A person may be required to attend an examination only in the

county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.

• b. Serve her because she isn’t a party to the case because illlicitng

testimony

• i. Mistress may file Objection and Motion for Protective Order:
• 1. Explain to judge why that person has information that is

admissible or leading to discoverable evidence

• c. Ask her how much is her rent
• d. What is her occupation
• e. If she is a nail tech and has a $5,000.00 apartment then she may not be

paying all of it.

• f. Remember: dissipation of assets is not a night in a Motel 6.
• i. It’s significant things: buying cars, jewelry, giving their paycheck
• 3. If she doesn’t bring records; ask her bank
• a. Notice to issue subpoena; Nonparty production
• 4. Once you get the information you need, then you tie it together at a hearing or

trial with charts and summaries

• a. Review and compare to FA
• b. Create a chart

• c. Chapter 90‐ statute: notice to use of charts and summaries
• i. Rule: 90.956 Summaries.—When it is not convenient to examine

in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness. The party intending to use such a summary must give timely written notice

• f his or her intention to use the summary, proof of which shall be

filed with the court, and shall make the summary and the originals

• r duplicates of the data from which the summary is compiled

available for examination or copying, or both, by other parties at a reasonable time and place. A judge may order that they be produced in court.

• ii. OC has to request it to inspect
• iii. QUESTION: Do you have to admit the underlying documents into

evidence?

• 1. Court has discretion. “A judge may order that they be

produced in court.” ‐