Discovering the Marital Estate – Part II: The Request Process

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It occurred to me that it might be a good idea to take a step back before moving forward with the discussion of establishing the marital estate. It’s amazing that you don’t realize how many steps there are until you begin breaking it down for someone else. The first step in the discovery process is sending out the requests. For purposes of this series, we are only considering standard discovery requests. In this case, sending your discovery requests to the other side is a standardized process: you send the requests to the other side with the requisite cover letter and diary a reminder for the response deadline. My attorney typically sends a “10-day letter” if the responses are not returned timely. Sometimes the other attorney will respond to the 10-day letter by requesting an extension or stating that they have their client’s answers and documents but have not yet had a chance to review them. As long as we believe this request to be in good faith (and most of the time it is), we allow more time for the response period. On the other hand, if the 10 days expires and there is still no response, it is time to file a Motion to Compel the discovery responses.

Receiving discovery requests from the other side that must be sent out to your client is an entirely different animal. Many clients are overwhelmed when they receive these responses, so it is good practice to draft a cover letter that includes certain instructions designed to walk them through the process. I recommend directing the clients to deal with the Request for Production of Documents first as these requests are often duplicated in the Interrogatories. This way, when they move on to the Interrogatories (which are typically much more lengthy), they will be able to respond to many questions by simply referring to the document production. Other suggested responses are, “N/A,” “in my spouse’s possession,” “previously provided,” etc. These may seem like obvious responses to us, but remember that this is all very personal and invasive for the client; therefore, the suggestions you provide will guide them through many of the responses, thereby alleviating at least some of the emotional duress they may experience as they go through this process.

Our letter also advises the client to deal with the discovery requests as though they are answering us rather than the other side. We assure them that their answers will serve as a “draft” to us and that we will determine what information the opposing party is entitled to receive and what information is confidential or privileged. We also make it a point to inform the client that they would need to provide the requested information to us even if the other side were not requesting it because we need it to prepare the marital inventory which will assist us in determining an equitable division of the marital estate. These directives help the client to understand that this is a necessary step in the divorce process while also assuring them that it is our intention to protect their privacy to the extent we are permitted to do so.

It is also important to give the client a deadline by which to submit the answers to your office. Under the Pennsylvania Rules of Civil Procedure, the deadline for discovery responses is 30 days from the date of the requests. Therefore, we instruct the clients to submit their responses to us within 20 days so that we have time to review their submissions and prepare the response to go out to the other side.

Once the 20 days have passed and you have your client’s responses (ideally!), it’s time to put together the discovery package to be submitted to opposing counsel. I start with the Response to the Request for Production of Documents as this will save time for me, just as it did for the client, when I move on to the more lengthy Interrogatories.

I find that many attorneys answer discovery requests in a manner which does not indicate the nature of the question to which they are responding. While they do tend to number the responses to correspond with the requests, they often state, “see attached” or “not applicable” forcing me to refer to our original requests to determine the nature of each request before I can assess the completeness or appropriateness of the response. When I prepare my responsive documents, I prefer to indicate the nature of the question in each of my responses. I do this not so much as a courtesy to the other side but because I may need to refer to these answers myself throughout the duration of the case. This is especially so in complex cases where there may be several “rounds” of discovery. Anything you can do to keep information and documentation more organized as you move through the case will continue to reap benefits as the matter moves toward equitable distribution, whether via settlement or litigation.

I also prefer to use numbered tabs to organize the document production. You can number your exhibits sequentially if you prefer, including reference to the appropriate exhibit number as part of your answer. This is the preferred method for one attorney with whom I work. Another option, which another attorney prefers, is to use a numbered tab that corresponds to the number of the question. Either way, I can readily find the information I need when the pressure is on.

As you prepare the responses based upon the information and documentation provided by your client, be sure to note any information which may be confidential or privileged. I will flag these items for the attorney’s review as it is the attorney, of course, who would ultimately make that determination.

Occasionally, I find that the client has missed a few questions or has provided incomplete documentation. It is important to be sensitive but diligent in coaxing the additional responses from the client. Some clients will be more focused than others and, depending upon the amount of information/documentation still required, it may be necessary to break down the requests into smaller components to get the job done more effectively (even if a bit less efficiently for my taste and yours). We all know what it’s like to have a client that needs a little more hand holding. It can be frustrating when you are trying to get the job done and have other deadlines looming. At time like this, it is important to remind yourself that although this is “just business” for you, your client may be at a very low point in his or her life – and is paying your salary.

Looks like there will be a Part III in this series. Until then, I hope all is well with you and yours.