Difference between revisions of "Discovery"
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==Requests for Admission== | ==Requests for Admission== | ||
Requests for Admission ask the other spouse to admit or deny specific facts, the application of law to facts, or to the authenticity of attached evidence.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html | Requests for Admission ask the other spouse to admit or deny specific facts, the application of law to facts, or to the authenticity of attached evidence.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html N.R.C.P. Rule 36]</ref> According to the North Carolina Rules of Civil Procedure, if a spouse does not respond to a Request for Admission within 30 days, the questions are considered admitted.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html N.R.C.P. Rule 36(a)]</ref> However, there is an exception in case law for "excusable neglect" that is used a lot with pro se spouses in divorce cases. The Requests for Admission document will list items you'd like the other spouse to admit or deny, like this: "1. Admit that...." Then the spouse will respond to each item as "Admitted" or "Denied." In the alternate, a spouse can claim they made a reasonable inquiry, the information known or readily obtainable is not sufficient for them to admit or deny, and they lack the information or knowledge to respond.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html N.R.C.P. Rule 36]</ref> | ||
If your spouse admits to something, this can avoid having to spend time and energy on it. The admitted item becomes an established fact as though a [[stipulation]] was signed. If your spouse does not admit to something you have compelling evidence of, this can be used to question the spouse's honest and integrity on the stand. | If your spouse admits to something, this can avoid having to spend time and energy on it. The admitted item becomes an established fact as though a [[stipulation]] was signed. If your spouse does not admit to something you have compelling evidence of, this can be used to question the spouse's honest and integrity on the stand. | ||
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==Depositions== | ==Depositions== | ||
A deposition is where you, your spouse, or another witness is interviewed and cross-examined in a similar fashion as would take place at trial.<ref>[https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_30.html N.C.R.P. Rule 30(c)]. "as permitted at the trial"</ref> Your attorney will need to make objections for leading questions or other inadmissible evidence as though you were in trial. Generally, depositions have to be done at least 30 days after the defendant has been served and every party to the lawsuit must be notified of the details of the deposition at least 15 days before the deposition and must take place in the county the witness lives or works in.<ref name="thirty">[https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_30.html N.C.R.P. Rule 30]</ref> Generally, depositions are recorded by audio and/or video, in addition to being used to create a transcript.<ref>[https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_30.html N.C.R.P. Rule 30(b)(4)]</ref> Generally, depositions are admissible as evidence at trial or in hearings.<ref>[https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_32.html N.C.R.C.P. 32]</ref> | |||
Depositions can be expensive, because you have to hire a court reporter to put the witness under oath and create a transcript you can use in court.<ref>[https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_28.html N.C.R.P. Rule 28]</ref> | |||
==See Also== | |||
* [http://mccrarylaw.com/wp-content/uploads/Notice-of-Deposition-.pdf Example of a Notice of Deposition] | |||
==Contact an Attorney== | ==Contact an Attorney== | ||
Latest revision as of 17:30, 15 October 2022
| Discovery | |
| Statutes: | N.R.C.P. Rule 26 |
| Description | Discovery refer to all of the methods used to gather evidence |
| Takeaway | You should start discovery immediately upon starting a lawsuit |
Discovery refers to a broad range of documents and processes that are used to obtain evidence for court. The most common discovery tools include Subpoenas, Requests for Admissions, Interrogatories, Requests for Production, and Depositions. Generally, litigants are entitled to any evidence that is relevant to the litigation and not unduly burdensome to collect. The scope of evidence spouses are entitled to and the volume of paperwork involved is often more than most spouses anticipate. It is not unusual collect hundreds of pages of records during discovery. Most discovery documents and evidence are not filed with the court, unless and until they are brought to a hearing as evidence.
Subpoenas
Subpoenas (Form AOC-G-100) are used to request records or testimony from a third-party. A few examples include getting bank records, hotel receipts, or phone records. Lawyers can send subpoenas directly to the third-party as an "officer of the court," whereas pro se litigants need to get their subpoena signed by a court clerk or judge before serving it.[1] Generally, a subpoena is served on the person or organization you are requesting records from by certified mail.[2] A copy of the subpoena is sent to your spouse or their attorney, but the subpoenas are not filed with the court unless you are asking the court to order someone to comply with a subpoena. Once you receive evidence in response to a subpoena, you must notify the opposing party and share the evidence upon request.[3]
Most of the time, the subpoena should be served at the address registered with the North Carolina Secretary of State for a business. If the business is located outside the state of North Carolina, you need to check the rules of that state for out-of-state subpoenas.[4] Most states will ask you to send the subpoena to a local court in that state to get a signature from a court clerk in that state. Generally, subpoenas should be served with an "Affidavit of Records Custodian," which allows the attached evidence to be admissible at trial.
Requests for Admission
Requests for Admission ask the other spouse to admit or deny specific facts, the application of law to facts, or to the authenticity of attached evidence.[5] According to the North Carolina Rules of Civil Procedure, if a spouse does not respond to a Request for Admission within 30 days, the questions are considered admitted.[6] However, there is an exception in case law for "excusable neglect" that is used a lot with pro se spouses in divorce cases. The Requests for Admission document will list items you'd like the other spouse to admit or deny, like this: "1. Admit that...." Then the spouse will respond to each item as "Admitted" or "Denied." In the alternate, a spouse can claim they made a reasonable inquiry, the information known or readily obtainable is not sufficient for them to admit or deny, and they lack the information or knowledge to respond.[7]
If your spouse admits to something, this can avoid having to spend time and energy on it. The admitted item becomes an established fact as though a stipulation was signed. If your spouse does not admit to something you have compelling evidence of, this can be used to question the spouse's honest and integrity on the stand.
Interrogatories
Interrogatories are written questions your spouse is required to respond to. Each spouse is limited to a total of 50 questions, unless the judge approves more.[8] In interrogatories, your spouse has time to craft their response to each question. Many spouses make frivolous objections to avoid answering questions as well. As a result, many lawyers prefer depositions, where questions are asked and answered in a live interview and the right to raise objections is more limited. However, you can also file a motion to compel to get a court order requiring your spouse to answer questions in the interrogatories they are dodging.[8]
Requests for Production
Requests for production is where you ask your spouse to produce documents, records, or other evidence in their possession.[9] Like with interrogatories, spouses may make many frivolous objections to producing the evidence requested, or not respond at all. In that case, a motion to compel may be necessary to get a court order commanding them to produce the requested evidence.
Depositions
A deposition is where you, your spouse, or another witness is interviewed and cross-examined in a similar fashion as would take place at trial.[10] Your attorney will need to make objections for leading questions or other inadmissible evidence as though you were in trial. Generally, depositions have to be done at least 30 days after the defendant has been served and every party to the lawsuit must be notified of the details of the deposition at least 15 days before the deposition and must take place in the county the witness lives or works in.[11] Generally, depositions are recorded by audio and/or video, in addition to being used to create a transcript.[12] Generally, depositions are admissible as evidence at trial or in hearings.[13]
Depositions can be expensive, because you have to hire a court reporter to put the witness under oath and create a transcript you can use in court.[14]
See Also
Contact an Attorney
This wiki is provided by North Carolina divorce lawyer David King and his firm King @ Law. You can learn more about King @ Law at www.kinglawnc.com. If you are looking to hire an attorney, have questions, or would like to contribute to this wiki, you can contact attorney King using any of the following methods:
- Schedule a Consultation
- Start a Facebook Chat
- Email: david@kinglawnc.com
- Voicemail: 919 706 5322
References
- ↑ Rule 45(a)(4). "The clerk of court in which the action is pending shall issue a subpoena, signed but otherwise blank, to a party requesting it, who shall complete it before service. Any judge of the superior court, judge of the district court, magistrate, or attorney, as officer of the court, may also issue and sign a subpoena."
- ↑ See Rule 45(b)(1) for more details
- ↑ Rule 45(d1). "Opportunity for Inspection of Subpoenaed Material"
- ↑ See Rule 45(f). "In doing so, the party shall use and follow any applicable process and procedures required and available under the laws of the state... where the discovery is to be obtained.
- ↑ N.R.C.P. Rule 36
- ↑ N.R.C.P. Rule 36(a)
- ↑ N.R.C.P. Rule 36
- ↑ 8.0 8.1 N.R.C.P. Rule 33(a)
- ↑ N.C.R.C.P. Rule 34
- ↑ N.C.R.P. Rule 30(c). "as permitted at the trial"
- ↑ N.C.R.P. Rule 30
- ↑ N.C.R.P. Rule 30(b)(4)
- ↑ N.C.R.C.P. 32
- ↑ N.C.R.P. Rule 28