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 evaluation 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 under).

Study extra about Mason’s Forensic Accounting Deskbook printed by the ABA Household Legislation 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 Legislation Group, PLC. All rights reserved. No a part of this publication could also be reproduced, saved in a retrieval system, or transmitted in any kind 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 courtroom, proving what discovery paperwork had been or weren’t exchanged will be simply as essential. For instance, at trial, one lawyer is cross-examining a celebration on the witness stand. Looking 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 choose to do? The choose won’t wish to spend time elongating a divorce trial over a dispute between two attorneys claiming a doc was or was not produced in discovery. There could have been 1000’s of pages of paperwork exchanged. Judges don’t wish to resolve credibility between two attorneys. However, assuming the doc is important, the problem is essential. At that second, the argument over manufacturing or nonproduction issues an ideal deal. Being proper and successful the argument could also be two various things.

Except there may be 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 circumstances often require that attorneys decide if the paperwork ought 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 profit. Bodily stamping paperwork will not be the laborious half. You will discover copiers or copy providers to stamp paperwork with reference letters and numbers.

Indexing the paperwork web page by web page and doc by doc, nonetheless, will be tedious past description. Bates-stamping paperwork in a household regulation matter is all the time difficult due to the way in which shoppers understand preparation. In case you Bates-stamp from the start of the case and the case settles, the price is sunk and seems wasted. In case you wait till the settlement negotiations fail to start the Bates-stamping course of, the duty itself could possibly be overwhelming as different time dedication pressures mount. Alternatively, in the event you full the Bates-stamping mission, the case is tried, and no discovery manufacturing dispute happens at trial, the shopper should still declare the Bates-stamping was overkill as a result of there was no dispute. Clearly, stopping the dispute was the consequence. In any occasion, even when it’s patiently defined upfront, shoppers don’t all the time see the profit in attorneys being ready.

For dialogue of Bates-stamping, see the primary chapter of The Divorce Trial Handbook.8 At trial, if the contested doc is Batesstamped, checking the index of paperwork cross-referenced by quantity ought to be comparatively easy. If the case’s finances doesn’t name for a Bates-stamping protocol, think about creating your individual discovery manufacturing memorandum process. Discovery manufacturing memoranda could be a less-expensive organizational instrument used to memorialize paperwork produced and paperwork acquired in discovery. As soon as discovery is exchanged, the legal professional getting ready the memorandum can share it with opposing counsel. The enclosure letter must also request opposing counsel evaluation the checklist to find out whether or not the memorandum is correct and full. Upon evaluation, 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 courtroom can depend upon.

Discovery deficiency memoranda checklist paperwork that haven’t been produced however ought to have been. These will be very useful along with 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’re 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 an inventory 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 checklist of furnishings, furnishings, artwork, and home equipment within the marital residence and the current worth of every merchandise. Husband now not resides within the marital residence and due to this fact is unable to compile this checklist.

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 observe and the proportion of her curiosity.

Deficiencies with Respect to Requests for Manufacturing of Paperwork

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

Doc Request No. 6. For this request for normal ledgers, payroll ledgers, and depreciation schedules for any enterprise curiosity, Spouse failed to provide any paperwork conscious of this request for her medical observe.

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 observe.

Finish of excerpt.

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