Darla and her husband, Craig, are engaged in a bitter divorce. They have been married for twelve years. Although they have no children, Craig has bought a lot of "toys" over the years including a motorcycle, speedboat, and an RV all in Craig's name but none listed on his financial statement. They both want the divorce but they also both want more than half of the marital assets because each

Question

believes the other is responsible for the divorce. Craig says he has no money to pay spousal support. Darla has never worked during their marriage (per their agreement that she would take care of their home) and she presently has no marketable skills. He claims that he has a shoulder injury that prevents him from working. However Darla believes he has been working "under the table" doing substantial odd jobs and that he is adding a deck and pool at the home of a woman she thinks he has been having an affair with for more than a year.

He has managed all of their finances throughout the marriage and has kept her in the dark. His initial financial statement reveals no retirement fund although he has worked for the local fire department account for twenty years. He also claims that he has no stocks or bonds and yet she says she has seen things on his computer indicating that he does have a stock portfolio. She also saw a mortgage application on which he listed the holdings as assets. She believes he has been communicating with the girlfriend by phone, texting, and email and that he met her through an online dating service. First briefly define formal discovery, informal discovery, and electronic discovery and then indicate how each might be used to Darla's benefit in this case. What potential roles would her attorney, the attorney's paralegal, and Darla herself play?

Answer 1

The student should note that discovery generally is the process of gathering information relevant to a matter at issue. Formal discovery is subject to procedural and court rules and includes depositions, interrogatories, requests for admissions, requests for production, and requests for physical or mental examination. Informal discovery is information gathering not governed by procedural rules. Electronic discovery is discovery of information created, stored, or utilized with computerized technology of any sort. All work performed by the paralegal (such as drafting discovery requests) is done under the supervision of the attorney.

Examples of how various types of discovery might be used include the following among others: Request for Admissions: that his signature on the mortgage application is genuine and that he in fact applied for the mortgage.
Interrogatories: to gather information on assets, employment, email accounts, etc.
Request for Production of Documents: to obtain pension information from his former employer
Request for Physical Examination: to show that he is faking his alleged injury
Deposition: to ask a variety of questions about topics such as the girlfriend, bank accounts, hidden assets, etc.
Informal discovery: hire a PI to photograph him working outside at the girlfriend's if visible from a public way; check blue book values of various assets, check public records for titles/registrations, gather credit card statements, income tax returns, etc. from the home that are readily accessible, photograph assets, etc. (Much of this can be done by the client.)
Request copies of emails and text messages as well as financial records maintained on his computer.