What is involved in the discovery process?

By Jennifer Fortunato
October 13, 2014
NJ FAQs/Legal Issues

In New Jersey, a divorce is started when the parties submit pleadings to the Court. Thirty days after the expiration of the last permissible responsive pleadings, there will be a Case Management Conference with the Court. At this conference, a discovery schedule will be established and placed in a Court Order. In most cases, discovery involves the parties obtaining information pertinent to the divorce from one another in the form of interrogatories, notice to produce, and depositions.  

Interrogatories are written questions that one party sends to the other to answer. They can also request the production of documents including information regarding a party’s education, employment, income, health, expenses, assets, debts, etc. Interrogatories can request information and documents about a party’s trial preparation, including the other party’s anticipated witnesses and/or expert witnesses, and any statements or reports provided by these witnesses.They can also request copies of all of the documents the other party intends to rely upon at trial. Interrogatories can ask questions that may not be permissible to ask during a trial. A party can object to answering a particular interrogatory if it violates a privilege such as an attorney-client privilege or a doctor-patient privilege. Other than privilege, every question must be answered unless the answering party obtains a Court Order stating otherwise.

Frequently, interrogatories are tailored to address a specific issue. For example, custody interrogatories ask questions regarding custody and parenting-time issues. Lifestyle interrogatories ask questions about one’s lifestyle during the marriage that is relevant to the issue of alimony. Employability interrogatories ask questions regarding past, present, and future employment. These interrogatories are usually sent to a party who has been out of the work force for a while, is underemployed or unemployed, and the other party is trying to determine the amount of earnings that should be imputed to that party for purposes of determining alimony and/or child support. 

A Notice to Produce requires a party to produce various documents – which may include income tax returns, bank account statements, brokerage account statements, credit-card statements, documents relating to real property, inheritances, gifts, trusts, books, and records of a business, etc. The party requesting the notice to produce has the right to inspect, copy, test, or sample any designated documents including sound recordings, images, electronically-stored information, and any other data stored in any medium from which information can be obtained and translated (if necessary) by the answering party into reasonably usable form.

A Deposition is where one party takes oral examination of another party or a third party: a fact witness or an expert. The deponent (the person being deposed) may be required to bring documents with him. The deponent is under oath as he would be if he were testifying in court. Thus, he is subject to punishment if he lies under oath. The questions asked and the testimony provided is recorded and transcribed. As with interrogatories and a Notice to Produce, objecting to answering a question during a deposition is limited to privilege unless a Court Order states otherwise. However, other objections may be made, but they will be preserved and may be asserted at the time the deposition testimony is proffered at trial.

Interrogatories, Notice to Produce, and Depositions are the forms of discovery that are usually used in divorce cases. However, other forms of discovery, such as a Request for Admissions, can also be used. A Request for Admissions is when a party serves the other party with a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact including the genuineness of any documents described in the request.

The discovery process may also include the hiring of experts. Experts are used to assist the parties and/or the Court to determine the value of an asset that is not easily obtained, such as a residential or commercial real estate appraiser to determine the value of real property, or a forensic accountant to determine the value of a party’s or parties’ business and/or business interest. A forensic accountant can also be used to determine a party’s income from their business or their business interest for purposes of determining support. Custody and parenting-time experts are used to recommend arrangements that are in the best interest of the children. Employability experts are used to determine how much a party could earn in the work force in the event that party is currently unemployed or underemployed for purposes of determining issues relating to support.

Experts can be jointly agreed to by the parties, court ordered, or each party may retain his/her own expert. An expert’s determination or recommendation is not binding on the parties unless the parties agree that it is binding. It is also not binding on the Court. Instead, experts assist parties in resolving their matter, and they assist the Court in making a determination. If the case is tried, the Court makes the ultimate determination, which may or may not be consistent with an expert’s recommendation. 

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October 13, 2014
Categories:  FAQs

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