Discovery
| 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.
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 of 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."
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 is where you ask your spouse to answer questions in writing. The questions are numbered and the other spouse has 30 days to respond to them.
Requests for Production
Requests for production is where you ask your spouse to produce documents, records, or other evidence in their possession.
Depositions
Deposition is where your spouse is interviewed on the record in much the same format as a court hearing. A court reporter records the interview and creates a transcript that can be used in court.
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.
- ↑ [https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html N.R.C.P. Rule 36]
- ↑ [https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_36.html N.R.C.P. Rule 36(a)]