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Episode 143 - How to Obtain the Information You Need through Discovery

Episode 143 - How to Obtain the Information You Need through Discovery Image

10/15/2019 4:06 pm

If you have read our website, you will have seen information about the 'Discovery Phase' of a divorce. In this show, Leh and Todd break down the discovery process and discuss which discovery tools are available to you to obtain the documents and evidence you need to prove your case. They also discuss when you should use which tools and how much it might cost. If you are worried about how you will get the documents you need for your divorce or similar family law case, then you should tune into this show.


Leh Meriwether: [00:00:02]

Leh Meriwether: Todd, you ready to get technical?

Todd Orston: I'm going to have to speak to my attorney before I answer that question.

Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm Meriwether and Tharp and you are listening to the Meriwether and Tharp Show. Here you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and from time to time even tips on how to take your marriage to the next level. If you want to read more about us you can always check us out online at

Todd Orston: Yeah you scared me there I'm not going to lie. I'm like-

Leh Meriwether: "Where are you going with this?"

Todd Orston: I think your definition of technical and mine might be a little different.

Leh Meriwether: All right.

Todd Orston: So what do you mean? What do you mean that we're going to get technical?

Leh Meriwether: Well what I mean is we cover, even though the focus is family law and divorce law, but we try to cover so many different aspects of that. Everything from the emotional, from people getting additional support like journey beyond divorce coming on recently and just all that but every once in a while we've got to go back to the core material because we also need to talk about what's going on in the divorce process to help people. Today we're going to talk about the tools of discovery.

Todd Orston: That is pretty broad. I feel like Christopher Columbus right now. This is ... so you need the telescope for discovery, you need a compass-

Leh Meriwether: Not that kind of discovery.

Todd Orston: What's the other thing that the sailors would use back then?

Leh Meriwether: Sexton?

Todd Orston: Yes. Thank you. I keep wanting to as abacus and that would have made me sound really dumb.

Leh Meriwether: Well they may have had one of those, too.

Todd Orston: Well yeah, absolutely.

Leh Meriwether: Calculate the speed as they were traveling.

Todd Orston: That's right.

Leh Meriwether: All right so we're going to talk about, to give a quick roadmap, we're going to talk about what discovery is and how it's not discovering the new world. We're going to talk about the power of the court to enforce discovery and we're going to actually define the most common forms of discovery and when you might use them in a case so that you understand what's going on if you're getting ready to go through a divorce or a similar family law case you can understand what tools are available to gather information to help either settle your case or present the best possible case in court.

Todd Orston: Let's get started.

Leh Meriwether: let's go. Todd, what's discovery?

Todd Orston: I have no idea. I'll be honest with you.

Leh Meriwether: That explains a lot.

Todd Orston: All right, discovery is exactly what it sounds like. It is your right, not just ability, but your right to discover information relevant to your case. There are specific tools like you were mentioning that parties are allowed to utilize in order to gain that information. Without going into the specific tools, generally speaking, you can ask questions in writing, you can ask for documents in writing, you can ask questions in person, you know? There are different ways to go about getting the answers that you need and sometimes there's actually crossover. In other words, you may ask for certain documents but also ask questions about what documents exist. What bank accounts exist and then, "Oh by the way, give me a copy of bank statements for these years for all of these bank accounts that might be in existence."

Todd Orston: So discovery is the ability, generally speaking, to just get the information you need to then deal with the issues in your case. Bank records and other things might relate to either property division or alimony or even child support. That type of information is not just important but necessary.

Leh Meriwether: Yeah and you can ask for things that you might not be able to get into evidence at court. In fact, one of the standards that the court looks at when asking for information is through the discovery process is this reasonably calculated to lead to the discovery of admissible evidence. You could be asking for something that on the surface may seem irrelevant but there's a purpose behind it because you're attempting to get admissible evidence later on.

Todd Orston: Especially in the family law realm courts will give wide latitude to parties to try and get that information. That is not to say that you cannot object to discovery requests. We do it, I don't want to say all the time. It's not the kind of thing that happens all the time but have we done it? Yeah unfortunately at this point in our careers, many times. Sometimes it becomes very clear that the discovery process is being used as more of a weapon than a tool to gain the information that you need to, again, make decisions and negotiate and do all those things and prepare for trial.

Leh Meriwether: We'll talk about some of the objections that we see most common but there are certain, of course it has its limits. While it's incredibly broad and invasive in some situations there are limits. For example, doctor/patient privilege, that's going to be a block of certain discovery requests. Attorney/client privilege-

Todd Orston: And not an absolute block, I just want to go back to that because just to be very clear, on most issues it's going to be, and we'll go into more detail but there are ways to sometimes get those medical records and psychological records and things like that if you're dealing with custody, for instance.

Leh Meriwether: Mm-hmm (affirmative).

Todd Orston: That might open up the door although usually the court will put safeguards in place to make sure that the information is safeguarded and released in a very controlled way.

Leh Meriwether: And it's sealed so nobody else can get access to it. Attorney work product, that's another one. The Fifth Amendment, you have a right to protect yourself from turning over something that may be an admission of a crime.

Todd Orston: Although there are considerations that you need to make before you plead the fifth.

Leh Meriwether: Right.

Todd Orston: You know, in other words you don't answer. If the court says, "Have you ever dressed like a clown?" And you plead the fifth. That really wouldn't be a valid thing but by saying, "I'm pleading the fifth," the court can make some assumptions.

Leh Meriwether: Right.

Todd Orston: While you did not affirm that you have dressed like a clown the court can make some assumptions that you have dressed like a clown. You have to be very careful depending on, strategically speaking, what the issue is and if you plead the fifth, understand that maybe that's going to be used against you by the court.

Leh Meriwether: In a civil setting.

Todd Orston: In a civil setting.

Leh Meriwether: So you plead the fifth so that any admission you give can't be used later against you in a criminal setting.

Todd Orston: By the way if you dress like a clown it would be criminal.

Leh Meriwether: There was a, what was it, last year there was an ordinance in some cities that you couldn't dress as a clown-

Todd Orston: That was because those, whatever, those evil like clown people and they were like showing up and staring at you and then a couple of the clowns got beat up. I do not sanction that kind of behavior or approve that kind of behavior but any of those clowns don't-

Leh Meriwether: But I swear there was an ordinance saying you can't dress up as a clown-

Todd Orston: Yeah I think some, jokes aside, towns or areas did try and put some rules in place because it was getting out of control. You know?

Leh Meriwether: People got mugged by clowns.

Todd Orston: Yeah they were getting, or just intimidated by these people, anyway we digress.

Leh Meriwether: Yeah we're supposed to stay technical today.

Todd Orston: The rest of this show is about dressing like a clown and the rules around clown dressing.

Leh Meriwether: All right so real quick, a lot of people say, "Well what happens if my husband doesn't turn over his bank records?" Well the court has a power to enforce these rules, these laws and let me give a quick caveat. Every state that I'm aware of in the United States has discovery laws where you're allowed to obtain certain information. The limits on that information can vary from state to state. We're going to talk in a big, broad, general statement. A lot of this is in reference of a context of we're practicing here in Georgia and Florida but there's a lot of similarities amongst all the states but don't take something that we say, this is not specific legal advice. If you have a case and you're in another state like Alaska or Hawaii, you definitely want to talk to ... or any state besides Georgia and Florida-

Todd Orston: Alaska has a huge clown problem. I mean, it's just huge. I've read that somewhere.

Leh Meriwether: You want to talk to an attorney about this but this is to give you the background information of the discovery process in general, which is fairly common across the country.

Todd Orston: We always say err on the side of going to an attorney in your area and get some specific answers from that attorney because they're going to know not just the state law but they're also going to know the local judges and how those judges handle things like discovery and other issues that come up routinely in these cases.

Leh Meriwether: Right. The court has, let's say somebody doesn't turn over documents, we'll use that as an example.

Todd Orston: Death.

Leh Meriwether: Exactly. In fact, most courts don't like discovery disputes. They're like, "Hey you should turn this stuff over." When you come to the court with a discovery issue most states have rules in place that the lawyers are supposed to confer before coming to the court asking for relief. Let's say that has been done, it's called a motion to compel here in Georgia and most states have a similar motion. You file that, then you have a hearing and the court says, "Hey there's..." maybe the other side's objected to turning it over and the court will make a decision as to whether that objection was valid or not. Then often they'll award attorneys fees if they felt the objection was ridiculous they'll award attorneys fees and then they will order the person to turn the documents over.

Leh Meriwether: If they don't turn over those documents after that court order is issued then that person is now in contempt of court, and you know of course you have to file a motion to enforce that contempt but we've seen situations where a court has thrown someone in jail for not turning over documents. There's other sanctions such as there was a case where someone didn't turn over documents at all and then when it came time to a final trial they weren't allowed to introduce, their answer was stricken and they weren't allowed to introduce any evidence except for testimony at trial. No text messages, no Facebook posts. They couldn't admit anything into the court room.

Todd Orston: I'm no lawyer but that sounds bad. Jokes aside, I am a lawyer. That'd be pretty bad after this many episodes to be like, "Oh you need a law degree for this?"

Leh Meriwether: Up next we're going to get into the specific tools of discovery.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to this show live you can listen at 1 AM on Monday mornings on WSB. You can always check us out there, as well.

Todd Orston: Better than counting sheep I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly

Todd Orston: [00:11:21]

Leh Meriwether: And for the record, Todd really does have a law degree and he's a lawyer because he couldn't be a partner at Meriwether and Tharp.

Todd Orston: Just because the degree is in crayon on a Denny's menu doesn't mean it's not valid.

Leh Meriwether: Tomorrow Todd's going to get a letter from the state bar of Georgia.

Todd Orston: I went to the Denny's School of Law and-

Leh Meriwether: Welcome back everyone, I'm Leh Meriwether and with me is the Attorney Todd Orston. I don't know who this other guy is. We're partners at Meriwether and Tharp and you're listening to The Meriwether and Tharp show. If you want to read more about us you can always check us out online at Well today we're talking about the tools of discovery. We're getting a little more technical here. We started off explaining, gave a little roadmap for the show, explained what discovery is, explained some of it's limits, talked a little bit about the court's power to enforce discovery and now we're going to get into the specific types of discovery and when you might use those.

Leh Meriwether: Just a super quick overview. The types of discovery you see most often are there's mandatory discovery in some areas. We'll explain what we mean by that, interrogatories, requests for production of documents, request for admissions, depositions, subpoenas for non-parties, third party requests for production of documents, third party depositions, gaining information from people in other states and motions to gain entry upon designated land or other property.

Leh Meriwether: That's an interesting one.

Todd Orston: It is.

Leh Meriwether: I've actually had to use it before. It was very effective. We'll get to that later. So let's start with mandatory discovery.

Todd Orston: Well first of all the term "mandatory discovery" usually, at least here in Georgia, oftentimes what that means, there are some counties that actually require certain basic discovery, okay? Even if you don't file, so let's say Fulton County. They have certain mandatory discovery which includes interrogatories and requests for the production of documents that even if a party doesn't formally request discovery, those discovery requests are outstanding. They are automatically involved and incorporated into that case. Really I think what the intention there was is they know a lot of people try to handle things on their own. They don't understand the legal process, don't understand the importance not only of discovery but of the timing necessary to engage in that discovery and so mandatory discovery was created to say, "Okay, everyone here's a basic amount of information everybody needs to provide. Whether you ask for it or not, these are the basics."

Leh Meriwether: You have to answer these questions or provide these documents.

Todd Orston: That's right.

Leh Meriwether: that's required by a rule like in Fulton County.

Todd Orston: Right.

Leh Meriwether: It's not a state statute but in Florida they actually have mandatory disclosures, I believe that's the term, mandatory disclosures. But it's a form of discovery but it's statutory, meaning it's the same across the entire state-

Todd Orston: It's been adopted, right. Throughout the state.

Leh Meriwether: Right. There's other states, I don't know if Georgia's in the minority but I know of a lot of states that have their own code that requires certain things to be turned over at the very beginning of the case. One thing that Georgia does have is there is a requirement before a temporary hearing that you have to submit your domestic relations financial affidavit, which actually has a lot of information in it, as well. We had a whole show talking about how to properly fill that out. I won't go into that.

Leh Meriwether: Sometimes you have mandatory discovery, or mandatory disclosures that have to be done at the beginning of every case and those are things that you can't object to. It has been decided, it's been, by the legislature that you have to turn this stuff over. There is no basis to object to these things so you've got to comply. All right so-

Todd Orston: The mandatory discovery incorporates things that also, in regular discovery, non-mandatory discovery, a lot of the tools are the same.

Leh Meriwether: Yeah.

Todd Orston: If not all of the tools are the same. In other words when we're talking about mandatory discovery then there's going to be interrogatories that are part of the mandatory discovery. When we do discovery beyond what may be mandatory in a given county it's going to be interrogatories. It's going to be a request for a production of documents. It may be ... admissions are not usually part of the mandatory but the same tools are being used but there's a more limited list usually with the mandatory and where an attorney comes in and the benefit of then engaging in some additional discovery you can flesh out those questions, you can add things, you know? It may not touch, the [mandatories 00:16:10] may not touch on something that's important in your case. If there are drug addiction issues, or any kind of adultery issues and you need to ask more questions, more detailed questions, you can ask those questions in the other discovery.

Leh Meriwether: Yeah and other situations where you might use your own set of formal interrogatories are when there's a business involved and you need to get a little more details about the business and ask questions about has there ever been an offer to sell the business or purchase the business? Maybe there's a concern about a depletion of assets because there's an equitable division issue so you may want to ask specific questions about that. The contested custody cases like you mentioned, if there's alcoholism or something like that or one of the common questions you might see is, "Please explain the basis as to why you think it's in the children's best interest to live with you on a primary basis."

Leh Meriwether: It forces that person to put it in writing as to why they should have primary custody of the children.

Todd Orston: Right or, "What concerns do you have about the other parent?"

Leh Meriwether: Yep.

Todd Orston: Let's take a step back, let's make sure that we properly explain what each of these tools is and how it works.

Leh Meriwether: Right.

Todd Orston: Okay so the interrogatories, what's an interrogatory?

Leh Meriwether: It's just a question. It's usually an open ended question asking things such as, "Please explain your..." Let's say somebody put in an answer that they believe that they had certain separate property. "Please list every item of separate property you believe you have and the basis for that separate property."

Todd Orston: Right so they are written questions that require written answers.

Leh Meriwether: Right.

Todd Orston: Okay? That's what interrogatories are. There are usually limitations on the number of interrogatories including sub parts that you can ask. It's a method to avoid someone becoming abusive and sending a three inch thick list of interrogatories with, "Oh yeah, interrogatory number one million two hundred and three."

Leh Meriwether: Right.

Todd Orston: Okay? It's usually 50 interrogatories, at least here in Georgia, it is 50 interrogatories including sub parts. You can't have number one, A, B, C, D, E, F, G, H, I, J. Number two, and you do the same thing. There are limits. You can go to the court and ask for the addition or the ability to add additional interrogatories. You have to have a justification.

Leh Meriwether: Right. At that point, in my opinion, you're better off just taking a deposition.

Todd Orston: A deposition, exactly.

Leh Meriwether: We'll talk about that later.

Todd Orston: That's interrogatories. Request for the production of documents, it's pretty much what it sounds like. You are requesting that the other party produce certain documents. An interrogatory might be, "Please list every single bank account that you own that's in your name or that you and maybe a third party own." The request for production of documents, RPD's, okay? That's going to say, "Okay, please provide, let's say, three years of records for every single bank account in your name or your name with a third party." You're asking for the actual formal documents.

Todd Orston: Then a request for admissions, not as widely used, as opposed to the blunt tool where you're just sort of fishing for some of this information. A request for admissions usually is more of the scalpel and you are asking, so let's assume it is something concerning, let's say, adultery. "Admit that on such and such date you stayed at this hotel. Admit on such and such date you were at that hotel with another party. Admit that on such and such date you stayed in a room with a third party. Admit that that third party was not your spouse." You are trying to get to an answer-

Leh Meriwether: Right, each one builds on the next.

Todd Orston: That's right.

Leh Meriwether: Has to be very specific, narrowed, because it's either admit or deny the whole thing. There's no explaining it.

Todd Orston: Yeah and there there are no limitations on the number but I have seen parties be sanctioned when the questions are just ridiculous.

Leh Meriwether: Like I've seen cases where it was like, a thousand requests to admit.

Todd Orston: Yeah and if it's a thousand and you can justify every single one of them, sure. Now to your point, a deposition would be a heck of a lot more efficient and if you have that many questions you need that party sitting in front of you and you can ask them and follow up on the questions and get the answers that you need.

Leh Meriwether: Here's the other critical element of a request to admit, if you do not answer, now in Georgia you have 30 days to answer. I don't know the request to admit in other states, this one is very specific to Georgia-

Todd Orston: Yeah this is important.

Leh Meriwether: If you don't answer in 30 days every single question is deemed admitted.

Todd Orston: Yep.

Leh Meriwether: It's very hard to undo that. It's a very powerful tool that if you have a party you know is non-responsive you can send out some very, this is a strategic decision to make, you send out requests to admit and they don't answer it and then when you go to court that is an admission under the rules of civil procedure in the state of Georgia. It becomes a very powerful tool.

Todd Orston: Yeah an overarching theme in this show and a message in this show is going to be if you are served with discovery take it seriously. Answer the questions, do it in a timely manner. It could result in, like you said, sanctions because there are motions to compel or your answers, your lack of an answer can be deemed an admission.

Leh Meriwether: Yep.

Todd Orston: Please take it very seriously. Get help if you need it.

Leh Meriwether: It could prevent you from presenting your case in court.

Todd Orston: That's right.

Leh Meriwether: What we can't prevent, though-

Todd Orston: The break.

Leh Meriwether: Is a break, yeah. Hey, but we're not going anywhere. When we come back we're going to continue to break down the specific tools of discovery and how they are used.

Leh Meriwether: [00:22:04]

Todd Orston: Hey everyone you're listening to our podcast but you have alternatives. You have choices. You can listen to us live also at 1 AM on Monday morning on WSB.

Leh Meriwether: If you're enjoying the show we would love it if you could go write us an iTunes or wherever you may be listening to it, give us a five star rating and tell us why you like the show.

Leh Meriwether: [00:22:29]

Leh Meriwether: You know, Todd, I am not doing this show any more if you won't take that clown nose off.

Todd Orston: [00:22:39] was that a really bad clown nose sound?

Leh Meriwether: That was a bad clown nose.

Todd Orston: That's what happens when we have no budget. We don't get all the good sound effects.

Leh Meriwether: This is going to be called The Tools of Clowns instead of Tools of Discovery.

Todd Orston: As long as you're on the show it will be. Oh.

Leh Meriwether: Oh my. All right, welcome back everyone. I'm Leh Meriwether, the only attorney in the room and with me is Todd Orston. We're partners at the law firm of Meriwether and Tharp and you're listening to the Meriwether and Tharp show. If you want to read more about us you can always check us out online at and if you missed the first two segments you can always go back and listen to them at, just want to throw that in there. Today we're talking about the tools of discovery and we talked about what the courts can do, what information you can gather and we're, right now we're sort of breaking down each specific tool and if we have time we're going to circle back around and talk about when one tool might be more effective than another, what sort of objections you can put up, what tools are there to protect you from some abusive discovery. If we have time we'll get to that, too.

Leh Meriwether: All right so we're talking about requests for admissions. One of the other things that I like about requests for admissions is that the reason, not only if they don't answer it it's deemed admitted but here's the other very important factor, let's say you deny that you were in that room with this specific woman. Then you get to court and you're able to prove that you had lied, or the other side proves that you had lied. You had denied something and they ultimately proved that that denial was a lie. Then you could be on the hook for all the attorneys fees it took to prove that denial was wrong. That's another key point and when I have used requests for admissions it has been very powerful because the person just flat out admitted it and I didn't have to spend a lot of time and money, of my client's money, proving the person wrong.

Leh Meriwether: Even though I ultimately might have gotten it back for my client they would have been out of pocket for the time period of the case. Another advantage is sometimes maybe you don't have enough money for a deposition, that's what we're going to get into next, why you might be limited and you have a bunch of Facebook posts and you want to make sure, or maybe you know the other side has a handle and it's not really them, it's a fake person and so they're out there posting all this negativity about your client. You can send them a request to admit that that Facebook post was actually posted by them. If they admit it, boom, now you can use it in court as evidence and you don't have to worry about the rules of evidence saying, "Well that wasn't me." You've got them.

Todd Orston: Yeah because remember there's a huge cost difference between preparing and sending requests to admit and preparing for and attending a deposition because the request to admit, I'm not saying that it doesn't take time but it might take a couple of hours to put together. Especially if there are a bunch of issues to prepare some good requests to admit.

Leh Meriwether: Yeah.

Todd Orston: Then you forward it on and you wait for the responses. A deposition you might spend, the attorney might spend two, three, four, five hours prepping for-

Leh Meriwether: That's a short deposition.

Todd Orston: No, no, no, I'm not even talking, I'm talking just the prep.

Leh Meriwether: Right-

Todd Orston: Yeah, yeah, yeah.

Leh Meriwether: I've spent a couple days sometimes on really complicated on.

Todd Orston: Yeah and then you go to the deposition, which could be an eight hour plus day.

Leh Meriwether: Right.

Todd Orston: It may even bleed over into a second day. A lot of times we will try to utilize other tools like request to admit because it's really, it's similar. You're saying, "Answer this question. Admit this" but the problem and the difference is what you don't have with the request to admit is the ability to sit across the table and if you get an answer and you're like, "Huh that's interesting. I would love to follow up on that." You don't have that immediate ability with request to admit-

Leh Meriwether: In interrogatories.

Todd Orston: Or interrogatories or any of these. You then have to engage in additional discovery and again, you don't have all the time in the world to engage in this discovery. Usually like in Georgia it's a six month discovery period. You can extend it and ask for extensions-

Leh Meriwether: So let's talk about deposition, what it is, so you can take it either audibly or you can use a video. There is such thing as video depositions. There's a court reporter there and they are recording everything you say, every question that's made, every answer you give, you're under oath when you're answering this and the transcript is typed up later. There's, like you said, there's the cost of preparing for it, there's the cost of having your lawyer present at it and then there's the cost for the court reporter to take everything down. There's a separate cost for the court reporter to type everything up and then of course your lawyer's going to want to review what the opponent has said before trial. There's just a lot of elements that make depositions more expensive.

Leh Meriwether: If the case is right it is so worth the money. You can save time in your deposition by sending out interrogatories, getting a lot of baseline questions answered ahead of time and then use that deposition for the followups.

Todd Orston: Yeah but you don't need, I mean, and the way that we usually approach it if the issues that you're dealing with are sort of normal issues that you deal with in a lot of different divorces there's no smoking gun kind of issue where if you can prove something ahead of time it literally will have a major, major impact on the case. Then a deposition may be overkill.

Leh Meriwether: Right, yep.

Todd Orston: That's why sometimes we see people and they'll depose one of our clients and we're like, it's just not necessary or a client will come and say, "I want to depose my spouse" and we'll look at the issues and we'll say, "Look, we can accomplish this, it'll be a lot less money, let us just try and gather the information that we need in a much cheaper, much more efficient way." They can be incredibly powerful and once you get them on the record then they're locked in. It becomes very difficult, if not impossible for them to go into court and say anything other than what they said in the deposition because you immediately have that ability to attack them. "Is it true you did X?" "Nope." "Well hold on one second, are you sure you never did whatever it is?" "No, I didn't." "Do you remember your deposition being taken?" And then the attorney can go into, "The deposition was taken, you gave a certain answer, that..." so basically now you've caught them in a lie.

Leh Meriwether: That's called an impeachment.

Todd Orston: That's right.

Leh Meriwether: So you've actually impeached them and now that your [accredability 00:29:27] on everything else is in question. I've seen that happen, someone just get flat out impeached. I've done it before, it's kind of sometimes satisfying as the lawyer to get someone and sometimes the judge will even make a comment on it like, "This person was impeached with their testimony because they gave a prior inconsistent statement in the deposition." To be clear, we don't use depositions to trick people. We are there, I use it to gather information-

Todd Orston: That's all discovery is.

Leh Meriwether: Yeah and to lock the person into their position because there are situations where you perhaps have contested custody and someone has made maybe a horrendous false allegation of perhaps sexual abuse or something like that and you're pretty darn sure that person suffers from a personality disorder. Well you've got to lock that person in as far as their testimony because they'll say one thing on day one and on day 15 it's something completely different. The deposition locks in their testimony so when you get to trial and they change their mind, now all of a sudden you've got them. It's not a trick it's just to lock them in.

Todd Orston: Right so let's quickly before the end of this segment let's try and go through the rest of the different types of discovery. What about subpoenas for non-parties?

Leh Meriwether: Okay so you can subpoena someone else to show up for a deposition that is not a party to a case. You don't have to issue the subpoena if they are a party to the case, meaning their name is on the pleading. You just send out a notice but third parties, so let's say there's a witness. Maybe there's a paramour, there's a neighbor that has information about seeing the husband in the back yard burying gold one night. I don't know. I mean, we've seen stranger. You send out a subpoena. That is enforceable by a court if someone, I've even seen a judge tell the sheriffs deputy to go pick the person up and bring them to the courthouse for the deposition so there is some power to enforce that deposition. It's obviously not something to be trifled with because if you abuse it the court will come down, and the bar association, will come down on the lawyer.

Todd Orston: Very quickly there are different rules when the person is out of state. A subpoena issued by a Georgia court for somebody who is a Georgia resident or in the state of Georgia, that's very different. The Georgia court can subpoena that person to come in. If somebody's in another state different rules apply. You can still get them to answer questions but there are different rules in terms of getting them to the table to get those questions answered.

Leh Meriwether: Yeah, in fact, we'll just briefly go into that step. You get a subpoena from a Georgia court for let's say a North Carolina resident. This is what I've done before. That subpoena by itself is unenforceable. Then you go to a court in North Carolina. I had to find local council there and then ask for that North Carolina judge in the county in which the person I was going to depose, ask questions, or the witness, where they lived. The court domesticated by subpoena, which now made it enforceable and so then the gentleman was served with the subpoena and then I took his deposition up in North Carolina. I had to travel to North Carolina-

Todd Orston: Yeah because you can't force them to come into Georgia.

Leh Meriwether: Right. There's a lot of extra steps, a lot of extra expense associated with that, in this particular case it was worth it but those are the steps you have to go through to get information outside of that. Hey and up next we're going to talk about just a couple more tools and then we're going to circle back around and talk about things you can do to sort of protect yourself from an abusive use of these tools of discovery.

Leh Meriwether: [00:33:11]

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to this show live you can listen at 1 AM on Monday mornings on WSB. You can always check us out there, as well.

Todd Orston: Better than counting sheep I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Todd Orston: [00:33:41]

Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you are listening to The Meriwether and Tharp show. If you want to read more about us you can always check us out online at Well today we've been talking about the tools of discovery and Todd has been trying to distract us with clowns but it hasn't worked. Where we left off was we were talking about getting information from potential witnesses that are outside of the state of Georgia and that there is a way to do it. You have to follow a process and a procedure. It can't be costly and cumbersome but you can gain access to certain witnesses outside the state doing that. Of course, the witness can voluntarily, I had this happen before, the witness live in the state of Washington. They agreed to have a deposition so I didn't have to do a subpoena and normally when you take a deposition you take it for the purposes of discovery. The only way that deposition comes into court is if the person testifying says something different than what they said in the deposition.

Leh Meriwether: Otherwise nobody will ever hear about the depo. It never comes in but there are sometimes you do a deposition for trial purposes because this person I knew was not available to make it to court in Georgia and so the only way I could get their testimony in front of the judge was by taking their deposition-

Todd Orston: Because under the rules of evidence they were an unavailable witness.

Leh Meriwether: Right. That's still a tool of discovery it's just a different kind of deposition and you have to be ready to raise all objections during the course of the deposition. We're actually going to have a whole show just about depositions because there's so much to them next week. You'll, especially if you may have a deposition coming up, this will be all about how to get ready for that deposition. All right what about third party requests for production of documents?

Todd Orston: Let's say, we've had situations where our client was sure that their spouse, their wife in this case just as an example, was hiding money in another bank account and so they swore under oath in their financial affidavit that they only had two bank accounts and their discovery response is what's called a request for production of documents. They only provided two bank accounts but our client swore up and down that he had seen two other bank accounts with two other banks so we sent subpoenas, third party requests for a production of documents to those banks and sure enough, one of them had another bank account and we're not talking about there was a few bucks in it, we're talking about tens of thousands of dollars was in this bank account. No wonder this person didn't want to turn it over in discovery but needless to say that tool of discovery enabled us to discovery that other marital asset.

Leh Meriwether: All right and then motion, this one you got very excited about, motions to gain entry upon designated land or other property. What's that all about?

Todd Orston: So let's say, here's the example that I had, the case started off on a bad foot for my client. He had been ordered to leave the marital home and through the course of the case, about two years into the case, he had not even been able to go back in the home. No idea what the condition was, there were certain assets of the marriage that were in that property and we wanted to go in there and look and use a video camera and video tape it's condition and everything because equitable division was an issue. They denied him coming in to take a video so we went to the judge, filed this motion and the court granted it and entered an order allowing us, with an escort, to come on the property and videotape the property, take pictures of everything, record it. Of course it was time limited, we had to do it on a certain day within a certain time period but we gathered evidence that allowed us to settle the case because his suspicions were confirmed when we went on the property.

Leh Meriwether: That's entering a location, a place, but this would also apply, would it not, to let's say there's a safe in the control of the other party-

Todd Orston: Yes.

Leh Meriwether: You want to be able to inventory what's in the safe or a storage locker or some kind of a storage facility where there is something being rented by the other party and you fear or believe that there is now property that is subject to division in the marriage and the divorce that might be hidden there or saved or secured there. This is the kind of motion that could then gain you access for the purpose of securing information to make sure that those things, whatever is there, whatever information you're looking to get can be then considered by the court.

Todd Orston: Yes and most of the time people take a camera and take pictures of it so they can introduce it in evidence in the court room. I mean thankfully I want to say in all my years of practice, I've been practicing since 1996, I've only had to use that once in a divorce that I can recall.

Leh Meriwether: But let me ask why? Because I can tell you I'm the same way. It's not because the other party didn't put up a fight it's that they buckled and gave in before it went before the court.

Todd Orston: Right.

Leh Meriwether: IE they realized it was a losing argument and therefore, you know, it was basically the arguments that I've had in the past it was, "I need to see." "No." "I need to see" "No." "Please?" "No." "Okay well then I'm going to court, I'm going to file a motion and I'm going to be able to look inside of whatever it is I need to look inside of." Ultimately they were like, "All right fine, fine, fine. You can come in, you can't take anything, you can take pictures." "That's all I want."

Todd Orston: Going back to what I said earlier about judges don't like discovery disputes so some people are like, "Well why didn't you file that motion right off the bat?" Because if you walk in front of the judge and-

Leh Meriwether: You made no effort.

Todd Orston: You made no effort, he or she will be mad at you.

Leh Meriwether: That's right.

Todd Orston: You've got to take those efforts, that's a discovery dispute, you have to take efforts to try to resolve that dispute before asking for help from the court.

Leh Meriwether: That really is a great tip, especially for anyone working with an attorney, be patient. Understand there is a process that is in place and rules that are in place that you may be frustrated, let's say, with your attorney because they're not just racing to court and filing things and getting you in front of a judge but unfortunately there may be local rules, court rules that basically require you to make a good faith, diligent effort to avoid court.

Todd Orston: Yeah and there are in Georgia, I know.

Leh Meriwether: Yep.

Todd Orston: Most states, federal law, I mean, I'm not aware of anywhere that doesn't have that rule.

Leh Meriwether: That's right. Again, talk to a local attorney and they'll be able to explain all of those rules to you.

Todd Orston: Mm-hmm (affirmative).

Leh Meriwether: All right so sometimes you have situations, discovery is not, there are limits to discovery and sometimes people use discovery as an abuse. It's abusive, it's not actually to discover ... it's not being used to determine whether there's evidence that may ultimately be admitted into court it's just used as a tool to punish someone or abuse someone. There's things called motions for protective orders.

Todd Orston: You're married for two years and they ask for 10 years of bank records and your student loan documents from 15 years earlier and a whole bunch of documents where it's like, "That's not going to be relevant to the divorce that we're dealing with right now at all so no we're not going to give it to you." The other side then says, "Yes you will. I've asked for it, it's part of the discovery process, give me those documents." You have two choices, give it to them or ask for, petition the court for a protective order where you are saying, "Judge this goes well beyond what is a reasonable discovery request and we are asking for protection and basically the right to say no." That's really what we're talking about.

Leh Meriwether: I've seen also, I think the most common places I've seen a motion for protective order is where you have one of the parties is a part owner at a business and so the other one side asks for all these records relating to this business, including perhaps customer lists and that sort of thing and a lot of times that information is a sort of secret information. They don't want to let it out, it's confidential, maybe there's some trade secrets in there that they don't want to let out and the other side is asking for it. The business can step in sometimes or the other party on behalf of the business files a motion for protective order and typically what winds up happening is one of two things. One perhaps the judge looks, it's called in camera inspection. The court reviews the documents or hires someone to review the documents, decide is the objection valid? And then other situations they say, "All right, this information can go to the lawyers office only. The party can review the documents at the lawyers office only and it shall not be disseminated" so there are safeguards around the access to this information.

Leh Meriwether: I tell you, people, anybody that violates that order can get in big trouble with the court. It's not pretty.

Todd Orston: Yeah so the bottom line is there are protections out there. There is the ability to stop abusive litigation in Georgia. There are also rules that relate to if you engage in abusive litigation that you could get hit with fees. Like you were saying earlier, if you're asking for something ridiculous like if you are in a case and you think, "Well I'm just going to send all of these requests" understand there is not just a potential but a probable conclusion or reaction by the court where you're going to get legally spanked. You're going to-

Leh Meriwether: It's a technical term.

Todd Orston: Yes-

Leh Meriwether: It's in the statute.

Todd Orston: Yeah it's in the law dictionary, right. No, but understand you are asking for trouble that ultimately if the court looks at what you're trying to do and ask for and you don't get it and the courts like, "Yeah that was abusive" you're probably going to have to pay a lot of legal fees because of that behavior.

Leh Meriwether: I was about to make another clown joke but unfortunately we're out of time so you're lucky. Everyone, thanks so much for listening and tune in next week because we're going to take a deeper dive on depositions and how to get ready for them.

Leh Meriwether: [00:44:30]