Video Transcript
Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today, we are going to talk about how to use formal discovery to prepare for trial. Discovery is complicated. We are going to need two videos to talk about discovery. In this first video we are going to talk about Interrogatories and Requests For Admissions. We will talk about other types of discovery in the next video.
Christina: Ed, please explain what “discovery” is.
Ed: “Discovery” refers to gathering information and documents from your spouse or from third parties so you can prepare for trial or prepare to negotiate a settlement. There is “informal discovery” and “formal discovery”.
Christina: What is the difference between informal discovery and formal discovery?
Ed: Informal discovery is where both parties cooperate with one another by voluntarily providing whatever information or documents the other party requests. Formal discovery is when your spouse will not voluntarily produce the information or documents you want, so you have to send them or a third party a legal document to force them to provide the information and documents.
Christina: If I’m in litigation with my spouse, isn’t it best for me to not voluntarily give my spouse information or documents that he needs so that he is forced to go to the trouble of sending me formal discovery?
Ed: Formal discovery is time consuming to draft, but it is a lot more time consuming to respond to. Formal discovery can be incredibly expensive if lawyers get involved because it is so time consuming. I highly recommend that both parties cooperate with each other by freely exchanging information and documents so you can both avoid the time, expense, and aggravation of formal discovery.
Christina: Are there different types of formal discovery?
Ed: Yes. We are going to start with interrogatories.
Christina: What are interrogatories?
Ed: Interrogatories are written questions your spouse must answer under oath. There are two types of interrogatories: 1) Form Interrogatories; and 2) Special Interrogatories.
Christina: What are form interrogatories?
Ed: The Judicial Council puts out a set of Form Interrogatories for family law cases. The form is FL-145. You can find the FL-145 form interrogatories in our Court Forms Database. The FL-145 consists of 21 questions that you can compel your spouse to answer. Fill out the caption on page 1 and, on page 2, check the boxes for whichever questions you want your spouse to answer. You can check all the boxes if you want or just some of the boxes. If you check box #10, you have to attach a blank Schedule of Assets and Debts, which is FL-142.
Christina: What do I do after I have filled out the FL-145?
Ed: After you have filled out the FL-145, make a copy of the FL-145 and any attachments. Then, complete a “Proof of Service By First-Class Mail”, which is POS-030. You can find the POS-030 in our Court Forms Database. Please note that this form is not an “FL” family law form. It is a “proof of service” form and that is why it starts with the letters “POS”. Fill out as much of the POS-030 as you can. Then, have a friend that is over 18 years old mail the FL-145, together with any attachments such as a blank FL-142, and a copy of the POS-030 to your spouse. Make sure your friend dates and signs the POS-030 before the documents are put in the mail to your spouse. Your spouse will have 35 days in which to send you his or her answers to the Form Interrogatories listed in the FL-145.
Christina: Do I file my FL-145 with the court clerk?
Ed: You do not file the FL-145 or the POS-030 with the court clerk. If you send your spouse Form Interrogatories, don’t be surprised if your spouse then mails you the same Form Interrogatories for you to answer.
Christina: So, now I understand what “Form Interrogatories” are. What are “Special Interrogatories”?
Ed: Special Interrogatories are questions you draft yourself and then submit to your spouse to answer under oath. You may want your spouse to answer particular questions that do not appear on the Form Interrogatories. If you want to send your spouse Special Interrogatories, you will need to draft a “Special Interrogatory” pleading. The Special Interrogatories must be typed on 28-line pleading paper, which is a type of paper that lawyers use.
Christina: If I don’t have a 28-line pleading paper and I don’t know how to draft a proper special interrogatory question, what do I do?
Ed: We offer various discovery documents in a template form, including a Special Interrogatory template. The templates will print on 28-line pleading paper. You can use the various templates to draft your own formal discovery documents. The package of discovery document templates is available for purchase for a nominal charge. We will discuss how to access the discovery templates package at the end of the next video.
Christina: Before I start drafting my special interrogatories, are there any rules that I need to know about?
Ed: Yes. Special Interrogatories are not permitted to have subparts. This means your questions may not have multiple parts such as subparts a, b, c, etc. Each special interrogatory has to be a single question. Special Interrogatories may not include questions that are compound, conjunctive, or disjunctive questions. This means you can’t have questions that ask for more than one piece of information by using words such as “and” (which is conjunctive) or the word “or” which is disjunctive. Make your Special Interrogatories clear and unambiguous. If the question is unclear or ambiguous, it will be objected to by your spouse. The basic rule is to keep each special interrogatory question simple. If you keep each special interrogatory question simple, you should be O.K.
Christina: Are there any other rules about the number of special interrogatory questions I can ask?
Ed: Yes. You can only ask 35 Special Interrogatories. If you want to ask more than 35 Special Interrogatories, you will need to include a declaration that briefly explains why it is necessary for you to ask more than 35 Special Interrogatories. If you Google “California Code of Civil Procedure 2030.050” and read this statute, you will find that it includes a template for the declaration you will need to include if you want to ask more than 35 Special Interrogatories.
Christina: What do I do after I have drafted my set of Special Interrogatories?
Ed: After you have drafted your Special Interrogatories, make a copy. You will have a friend that is over 18 years old put the Special Interrogatories in the mail to your spouse. You will then, complete the “Proof of Service By First-Class Mail”, which is POS-030. Fill out as much of the POS-030 as you can and then have your friend date and sign the POS-030. Make sure your friend dates and signs the POS-030 before the documents are put in the mail to your spouse. Your spouse will have 35 days in which to send you his or her answers to the Special Interrogatories.
Christina: Do I file my original set of Special Interrogatories with the court clerk?
Ed: You do not file the Special Interrogatories or the POS-030 with the court clerk. If you send your spouse Special Interrogatories, don’t be surprised if your spouse then mails you a set of Special Interrogatories for you to answer.
Christina: Let’s talk about another type of formal discovery, “Request for Admissions”. Ed, what are Request For Admissions?
Ed: “Request For Admissions” can be used to compel your spouse to admit the genuineness of a specific document that you want to use at trial or to admit the truth of specific facts. If your spouse admits that certain facts are true in response to a Request For Admissions, you don’t have to prove those facts at trial. If your spouse admits in a response to a Request For Admissions that a particular document is genuine, then you do not need to prove the authenticity of that document at trial.
Christina: Are there form Requests for Admissions like there are form interrogatories?
Ed: Sort of. There is a Judicial Council “Request For Admission” form, which is DISC-020, but it is not much more than a cover sheet. If you use the DISC-020, you will have to draft the set of facts you want to be admitted and list those facts on “Attachment 1”. You can also attach to the DISC-020 whatever documents you want your spouse to admit are genuine.
Christina: Is the DISC-020 form in our Court Forms Database?
Ed: Yes. This Judicial Council form begins with the letter “DISC” because it is not a family law form, but is a “Discovery” form.
Christina: What if I don’t know how to draft a proper request for admission that I can use for “Attachment 1”?
Ed: In our Discovery package of templates, we include a template that will assist you in drafting an “Attachment 1” that you can attach to your “Request for Admissions”. Our Discovery package of templates also includes a sample template for “Attachment 2” to be used for admissions regarding the genuineness of documents.
Christina: Is there a limit to the number of facts I can ask my spouse to admit when I use a Request For Admissions?
Ed: Yes. You are limited to 35 requests for admissions. It is not 35 admissions of facts plus another 35 admissions regarding whether or not certain documents are genuine. It’s a total of 35. So, if you ask your spouse to admit 20 different facts, you can then only ask your spouse to make 15 admissions regarding the genuineness of documents. If you need to have your spouse admit more than 35 items, then you can do so, but you will then need to include a declaration that briefly explains why it is necessary for you to propound more than 35 requests for admissions. If you Google “California Code of Civil Procedure 2033.050”, you can read this statue and the statute includes a template for the declaration you will need to include if you want to ask your spouse to admit more than 35 items.
Christina: Before I start drafting my request for admissions, are there other rules I should know?
Ed: Yes. Requests for admissions can’t include multiple facts, subparts, or compound statements. Requests must be clear. Make your requests concise. Limit each request to a single fact. Also, your “Attachment 1” must be on 28-line pleading paper. If you use our template, it will be on a 28-line pleading paper.
Christina: What do I do with my Requests For Admissions after I have drafted the document?
Ed: After you have drafted your Request for Admissions, make a copy. You will have a friend that is over 18 years old put the Request For Admissions in the mail to your spouse. You will then, complete the “Proof of Service By First-Class Mail”, which is POS-030. Fill out as much of the POS-030 as you can and then have your friend date and sign the POS-030. Make sure your friend dates and signs the POS-030 before the documents are put in the mail to your spouse. Your spouse will have 35 days in which to send you his or her Responses to your Requests for Admissions
Christina: Do I file my original set of Requests for Admissions with the court clerk?
Ed: You do not file the Requests for Admissions or the POS-030 with the court clerk.
