A discovery deficiency memo is the spine to each movement to compel discovery in divorce and extra. This video is inside coaching for our household regulation attorneys and paralegals drafting a concise and helpful memo to accompany the response to a overview of an opposing occasion’s solutions to interrogatories and responses to requests for manufacturing of paperwork. There’s an instance of a discovery deficiency memo within the Forensic Accounting Deskbook (see beneath).

Study extra about Mason’s Forensic Accounting Deskbook revealed by the ABA Household Regulation Part right here: https://www.americanbar.org/products/…

The next is an excerpt from The Forensic Accounting Deskbook: A Practical Guide to Financial Investigation and Analysis for Family Lawyers, Second Edition. Reprinted by permission. Copyright © 2018 American Bar Affiliation and Miles Mason Household Regulation Group, PLC. All rights reserved. No a part of this publication could also be reproduced, saved in a retrieval system, or transmitted in any type or by any means, digital, mechanical, photocopying, recording, or in any other case, with out the prior written permission of the writer. Footnotes could also be omitted from the unique textual content.

From Chapter 5:

Manufacturing Memos, Deficiency Memos, Hole Charts, and Bates-Stamping

Receiving discovery is essential. In the course of the examination of a witness in court docket, proving what discovery paperwork had been or weren’t exchanged may be simply as essential. For instance, at trial, one lawyer is cross-examining a celebration on the witness stand. Searching for to question the witness with a doc, the questioning lawyer arms the doc to the opposite lawyer simply previous to submitting it to the witness. However the different lawyer objects to the usage of the doc on the grounds that it had not been produced in discovery. The questioning lawyer states the doc was produced. What’s the decide to do? The decide is not going to wish to spend time elongating a divorce trial over a dispute between two legal professionals claiming a doc was or was not produced in discovery. There could have been hundreds of pages of paperwork exchanged. Judges don’t wish to determine credibility between two legal professionals. Nonetheless, assuming the doc is critical, the difficulty is essential. At that second, the argument over manufacturing or nonproduction issues an excellent deal. Being proper and successful the argument could also be two various things.

Until there’s documentation itemizing particular paperwork produced and corresponding numbers of pages, there isn’t any technique to successfully argue manufacturing disputes within the courtroom. Industrial-sized discovery instances often require that legal professionals decide if the paperwork needs to be Bates-stamped. Whether or not to Bates-stamp discovery in a household regulation matter is a query of judgment—weighing price relative to learn. Bodily stamping paperwork just isn’t the onerous half. You could find copiers or copy companies to stamp paperwork with reference letters and numbers.

Indexing the paperwork web page by web page and doc by doc, nevertheless, may be tedious past description. Bates-stamping paperwork in a household regulation matter is at all times difficult due to the way in which purchasers understand preparation. Should you Bates-stamp from the start of the case and the case settles, the fee is sunk and seems wasted. Should you wait till the settlement negotiations fail to start the Bates-stamping course of, the duty itself might be overwhelming as different time dedication pressures mount. Then again, for those who full the Bates-stamping venture, the case is tried, and no discovery manufacturing dispute happens at trial, the consumer should still declare the Bates-stamping was overkill as a result of there was no dispute. Clearly, stopping the dispute was the outcome. In any occasion, even when it’s patiently defined prematurely, purchasers don’t at all times see the profit in legal professionals being ready.

For an excellent dialogue of Bates-stamping, see the primary chapter of The Divorce Trial Guide.8 At trial, if the contested doc is Batesstamped, checking the index of paperwork cross-referenced by quantity needs to be comparatively easy. If the case’s funds doesn’t name for a Bates-stamping protocol, think about creating your individual discovery manufacturing memorandum process. Discovery manufacturing memoranda is usually a less-expensive organizational instrument used to memorialize paperwork produced and paperwork obtained in discovery. As soon as discovery is exchanged, the lawyer getting ready the memorandum can share it with opposing counsel. The enclosure letter must also request opposing counsel overview the record to find out whether or not the memorandum is correct and full. Upon overview, if there are any inaccuracies, the reviewing lawyer ought to notify in writing the lawyer who ready the memorandum. Within the absence of a dispute, the manufacturing counsel can declare to have ready an correct memorandum the court docket can depend upon.

Discovery deficiency memoranda record paperwork that haven’t been produced however ought to have been. These may be very useful at the side of motions to compel. It’s typically a good suggestion to ship opposing counsel the memorandum, within the type of a letter, to provide her a possibility to right the deficiencies earlier than you might be compelled to file your movement to compel. The invention deficiency memorandum can then merely be connected as an exhibit to the movement to compel. You must also replace the memorandum because the case progresses. Instance 5-9 is a portion of a discovery deficiency memorandum.

Instance 5-9

CONFIDENTIAL INTERNAL MEMORANDUM

To: Legal professional
From: Paralegal
Date: November 11, 2018

Topic: Picard v. Picard – Discovery Deficiencies Memo

Deficiencies with Respect to Solutions to Interrogatories

Interrogatory No. 9. For this request for a listing of all marital property, together with sort of property, foundation for declare that it’s marital, price of acquisition, and current worth, Spouse failed to offer an itemized record of furnishings, furnishings, artwork, and home equipment within the marital residence and the current worth of every merchandise. Husband not resides within the marital residence and subsequently is unable to compile this record.

Interrogatory No. 10. For this request for info relating to enterprise pursuits, together with nature of curiosity, share of curiosity, and estimated worth of curiosity, Spouse failed to offer her estimated worth of her medical follow and the share of her curiosity.

Deficiencies with Respect to Requests for Manufacturing of Paperwork

Doc Request No. 2. For this request for paperwork reflecting the earnings, bills, belongings, or liabilities for any enterprise curiosity, Spouse failed to provide partnership earnings tax returns, stability sheets, revenue and loss statements, earnings statements, or different paperwork reflecting the earnings, bills, belongings, or liabilities of her medical follow.

Doc Request No. 6. For this request for common ledgers, payroll ledgers, and depreciation schedules for any enterprise curiosity, Spouse failed to provide any paperwork attentive to this request for her medical follow.

Doc Request No. 8. For this request for proof of possession or management of a enterprise curiosity, Spouse failed to provide the partnership settlement for her medical follow.

Finish of excerpt.

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