Discovery Deficiency Memo Training
A discovery deficiency memo is the backbone to every motion to compel discovery in divorce and more. This video is internal training for our family law attorneys and paralegals drafting a concise and useful memo to accompany the response to a review of an opposing party’s answers to interrogatories and responses to requests for production of documents. There is an example of a discovery deficiency memo in the Forensic Accounting Deskbook (see below).
Learn more about Mason’s Forensic Accounting Deskbook published by the ABA Family Law Section here: https://www.americanbar.org/products/…
The following 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 Association and Miles Mason Family Law Group, PLC. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Footnotes may be omitted from the original text.
From Chapter 5:
Production Memos, Deficiency Memos, Gap Charts, and Bates-Stamping
Receiving discovery is important. In the middle of the examination of a witness in court, proving what discovery documents were or were not exchanged can be just as important. For example, at trial, one lawyer is cross-examining a party on the witness stand. Seeking to impeach the witness with a document, the questioning lawyer hands the document to the other lawyer just prior to submitting it to the witness. But the other lawyer objects to the use of the document on the grounds that it had not been produced in discovery. The questioning lawyer states the document was produced. What is the judge to do? The judge will not want to spend time elongating a divorce trial over a dispute between two lawyers claiming a document was or was not produced in discovery. There may have been thousands of pages of documents exchanged. Judges do not want to decide credibility between two lawyers. Nevertheless, assuming the document is significant, the issue is important. At that moment, the argument over production or nonproduction matters a great deal. Being right and winning the argument may be two different things.
Unless there is documentation listing specific documents produced and corresponding numbers of pages, there is no way to effectively argue production disputes in the courtroom. Industrial-sized discovery cases usually require that lawyers determine if the documents should be Bates-stamped. Whether to Bates-stamp discovery in a family law matter is a question of judgment—weighing cost relative to benefit. Physically stamping documents is not the hard part. You can find copiers or copy services to stamp documents with reference letters and numbers.
Indexing the documents page by page and document by document, however, can be tedious beyond description. Bates-stamping documents in a family law matter is always tricky because of the way clients perceive preparation. If you Bates-stamp from the beginning of the case and the case settles, the cost is sunk and appears wasted. If you wait until the settlement negotiations fail to begin the Bates-stamping process, the task itself could be overwhelming as other time commitment pressures mount. On the other hand, if you complete the Bates-stamping project, the case is tried, and no discovery production dispute occurs at trial, the client may still claim the Bates-stamping was overkill because there was no dispute. Obviously, preventing the dispute was the result. In any event, even if it’s patiently explained in advance, clients don’t always see the benefit in lawyers being prepared.
For a good discussion of Bates-stamping, see the first chapter of The Divorce Trial Manual.8 At trial, if the contested document is Batesstamped, checking the index of documents cross-referenced by number should be relatively simple. If the case’s budget does not call for a Bates-stamping protocol, consider creating your own discovery production memorandum procedure. Discovery production memoranda can be a less-expensive organizational tool used to memorialize documents produced and documents received in discovery. Once discovery is exchanged, the attorney preparing the memorandum can share it with opposing counsel. The enclosure letter should also request opposing counsel review the list to determine whether the memorandum is accurate and complete. Upon review, if there are any inaccuracies, the reviewing lawyer should notify in writing the lawyer who prepared the memorandum. In the absence of a dispute, the producing counsel can claim to have prepared an accurate memorandum the court can rely upon.
Discovery deficiency memoranda list documents that have not been produced but should have been. These can be very helpful in conjunction with motions to compel. It is generally a good idea to send opposing counsel the memorandum, in the form of a letter, to give her an opportunity to correct the deficiencies before you are forced to file your motion to compel. The discovery deficiency memorandum can then simply be attached as an exhibit to the motion to compel. You should also update the memorandum as the case progresses. Example 5-9 is a portion of a discovery deficiency memorandum.
Example 5-9
CONFIDENTIAL INTERNAL MEMORANDUM
To: Attorney
From: Paralegal
Date: November 11, 2018
Subject: Picard v. Picard – Discovery Deficiencies Memo
Deficiencies with Respect to Answers to Interrogatories
Interrogatory No. 9. For this request for a list of all marital property, including type of property, basis for claim that it is marital, cost of acquisition, and present value, Wife failed to provide an itemized list of furniture, furnishings, art, and appliances in the marital residence and the present value of each item. Husband no longer resides in the marital residence and therefore is unable to compile this list.
Interrogatory No. 10. For this request for information regarding business interests, including nature of interest, percentage of interest, and estimated value of interest, Wife failed to provide her estimated value of her medical practice and the percentage of her interest.
Deficiencies with Respect to Requests for Production of Documents
Document Request No. 2. For this request for documents reflecting the income, expenses, assets, or liabilities for any business interest, Wife failed to produce partnership income tax returns, balance sheets, profit and loss statements, income statements, or other documents reflecting the income, expenses, assets, or liabilities of her medical practice.
Document Request No. 6. For this request for general ledgers, payroll ledgers, and depreciation schedules for any business interest, Wife failed to produce any documents responsive to this request for her medical practice.
Document Request No. 8. For this request for evidence of ownership or control of a business interest, Wife failed to produce the partnership agreement for her medical practice.
End of excerpt.
