Video #58 – Contested Divorce PART 8 (Preparing for Trial – More Discovery)

Video Transcript

Welcome to 

Christina:  This is Christina.

Ed:  This is Ed.  This is our second video about how to use formal discovery to prepare for trial.  In this video, we are going to talk about Requests for the Production of Documents, depositions, and subpoenas.

Ed:  Christina, what is a “Request For Production of Documents”?

Christina:  You can compel your spouse to produce documents that are in his or her possession or under his or her control by sending your spouse a “Request for Production of Documents”.  For example, you may want your spouse to produce copies of their pay stubs, retirement plan documents, credit card statements, loan applications, check register book, bank statements, etc.

Ed:  Is there a Judicial Council form that I can use for my Request For Production of Documents?

Christina:  There is no Judicial Council form for a “Request for Production of Documents”.  If you want to send your spouse a Request For Production of Documents, you will need to draft this document yourself.  The Request For Production of Documents must be typed on 28-line pleading paper.

Ed:  If I don’t have a 28-line pleading paper and I don’t know how to draft a Request For Production of Documents, what do I do?

Christina:  As we mentioned in our last video, we offer various discovery documents in a template form, including a Request For Production of Documents 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.  It is very simple to use our Request For Production of Documents template.  You are going to type in your case information in the caption of the template.  Then, you will review the long list of documents we have included with the template.  Delete any documents you don’t need from our list and then print your Request For Production of Documents.  If there are documents you want from your spouse that are not on our list of documents, just add the documents you want to our existing list.  At the end of this video, we explain how to access the Discovery documents templates.

Ed: Before I start drafting my Request For Production of Documents, are there any rules that I need to know about, like the rules for interrogatories and Requests for Admissions that prohibit subparts, compound questions, and limits on the number of documents I can request?

Christina:  There is no limit on the number of documents you can request your spouse to produce.  When you write down a description of the documents you want your spouse to produce, your description of the documents can have subparts and you can use conjunctions and disjunctive words.  However, you want to make your requests clear and unambiguous so your spouse knows which documents to produce.  

Ed:  What do I do after I have drafted my Request For Production of Documents?

Christina:  After you have drafted your Request For Production of Documents, make a copy.  You will have a friend that is over 18 years old put the Request For Production of Documents 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 Request For Production is put in the mail to your spouse.  Your spouse will have 35 days in which to send you the documents along with his or her responses to your Request For Production. 

Ed:  Do I file my original Request For Production with the court clerk?

Christina:   You do not file the Request For Production or the POS-030 with the court clerk.  One other point I want to make about Requests For Production of Documents.  It’s easy to draft a Request For Production of Documents that will require your spouse to spend days gathering up hundreds, if not thousands of documents.  However, remember that if you send your spouse a Request For Production of Documents that asks for tons of documents, you can expect your spouse to turn around and send you the same thing.  So, just ask for documents that you think you will actually need.

Ed:  Let’s talk about depositions.  Christina, what is a deposition?

Christina:  A deposition is when you have your spouse or a third party sit in front of you and answer whatever questions you want to ask.  The “deponent” is under oath.  You hire a stenographer that attends the deposition.  The stenographer places the deponent under oath and then types up every word that is said during the deposition.  You can also compel your spouse or a third-party deponent to bring documents that are in their possession or under their control with them to the deposition so you can ask questions about the documents.  A few weeks after the deposition, the stenographer gives you a transcript of the deposition.  You pay the stenographer for appearing at the deposition and you pay the stenographer for the original transcript and a copy of the transcript.  The cost of the transcript is going to depend on how many pages make up the transcript.  You are billed per page.

Ed:  If I want to take my spouse’s deposition, how do I get my spouse to show up for a deposition?

Christina:   If you want to take your spouse’s deposition, you need to send your spouse a “Notice of Taking Deposition” specifying the date, time, and place of the deposition and describing any documents you want your spouse to bring to the deposition. 

Ed:  What if I want to take the deposition of a third party, such as my spouse’s girlfriend or his employer, how do I compel a third party to show up for a deposition?

Christina:  If you want to depose a third party, you not only have to send your spouse a “Notice of Taking Deposition” letting your spouse know you intend to take the deposition of a third party, but you also have to serve the third party with a deposition subpoena to compel them to attend the deposition.  The type of deposition subpoena you use is called “Deposition Subpoena For Personal Appearance”, which is SUBP-015, which you can find in our Court Forms Database).

Ed:  Is the “Notice of Taking Deposition” a court form?

Christina:  The “Notice of Taking Deposition” is not a court form.  It is a document you have to draft yourself.  We include a template you can use to draft your own “Notice of Taking Deposition” in our Discovery documents template package.

Ed:  After I draft my Notice of Taking Deposition and serve my spouse with a copy, do I file the original with the court?

Christina:  You don’t file the Notice of Taking Deposition with the court.  You just keep the original document.

Ed:  Where do I take the deposition and how do I go about hiring a stenographer to attend the deposition?

Christina:  If you Google “court reporting services” you will be able to find deposition stenographers in your area.  Most court reporting companies will provide not only a stenographer but also a conference room where you can take the deposition if you use their stenographer.

Ed:  How do I prepare for taking someone’s deposition?

Christina:  A few days before the deposition, sit down and start making a list of all the questions you want to ask your spouse or the third party during the deposition.  When the deposition starts, go through your list of questions.  After you ask a question, listen to the answer because the answer to the question may lead you to ask additional questions that are not on your original list of questions.

Ed:  What if there are records or documents that I need in order to prepare my case for trial, but the records or documents are not in the possession of my spouse, but in the possession of a third party – how do I get copies of those records?

Christina:   You use a “Deposition Subpoena For Production Of Business Records”. This type of subpoena is used to compel a third party to produce copies of documents or other materials.   For example, you may want your spouse’s employer to produce copies of payroll records and/or records pertaining to your spouse’s retirement benefits.   You may want to subpoena bank records from each bank where your spouse has or had an account.  A “Deposition Subpoena For Production Of Business Records” is a Judicial Council form.  The form is SUBP-010.  You can find this form in our Court Forms Database.  This is not a Family Law form, but a subpoena form, which is why the form starts with the letters, “SUBP”.  If you Google, “subpoena preparation services”, you should be able to find a company that will help you draft the subpoena, serve the subpoena, provide required consumer notices, and obtains copies of the documents you want from the third party.  We recommend that you not attempt to draft and use this type of subpoena yourself.  Use a subpoena preparation services company.  It is a lot easier than doing it yourself.

Ed:  After listening to this and the previous discovery videos, do I know everything I need to know about discovery?

Christina:  No, you don’t.  There are all kinds of rules that govern formal discovery.  There are rules about how soon formal discovery documents can be served.     There are rules about when discovery “cuts off” as you near your trial date.  Discovery typically “cuts off” 30 days before trial.  This means most forms of discovery must be completed 30 days before trial.  The discovery rules are set forth in lengthy statutes that pertain to each type of formal discovery.  We have given you the most basic rules.  If you want to know all the rules, you need to read the statutes that pertain to the particular type of formal discovery you wish to propound, and those statutes are set forth in the California Code of Civil Procedure.

Ed:  Can you explain a bit more about the Discovery templates package that includes the templates for various discovery documents?

Christina: Yes.  As I previously mentioned, a number of formal discovery documents are not Judicial Council forms.  Special Interrogatories; Request For Production of Documents; Notice of Taking Deposition; etc.  These documents are not Judicial Council forms.  You have to draft these documents yourself.  You can go to the public law library in your area.  A law library is different from a regular library.  Usually, the law library will be located at or near the courthouse.  You can ask the librarian to direct you to the “form books” for California.  You want to look at the “discovery” form books, preferably those in the family law section of the library.  These books will show you sample formal discovery documents you can copy.  The books will also explain, in detail, the different rules that apply to each type of formal discovery.

If you don’t want to spend many hours reading discovery form books at your local law library, we offer, for a nominal charge, the following sample formal discovery documents in a template form:

  1. Notice of Taking Deposition. 
  2. Request For Production.
  3. Special Interrogatories.
  4. Attachment #1 for a Request For Admissions and Attachment #2 for a Request For Admissions.

Our package includes a sample of each document.  You get all four documents for one nominal charge.  You will need to type over certain information on our sample forms, inserting your own name, address, phone number, case caption, case number, and other information specific to your case.  You can edit any and all of our sample forms.

After you edit whichever formal discovery forms you want, print them, and then have a friend that is over 18 mail copies of your formal discovery documents to your spouse, including a completed Proof of Service form, POS-030.  If you wish to purchase the package of sample formal discovery documents, go to our Templates database.


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