What goes into Discovery?

I’m often asked by clients what goes into discovery.

What does it entail when we have trust litigation going on? Is it different from what I have heard about in civil cases like my friend who was injured in a car wreck?

Well no, it’s actually the same process but they’re gonna be different topics that are covered. I want to break this down for you so you know what you can expect.

Trust litigation cases are oftentimes document-driven and what I mean by that is there are oftentimes a large number of documents that are going to be important to the outcome of the case. It’s going to be financial records where we’re dealing with an account, it’s going to be medical records where we’ve got issues of either lack of capacity or undue influence, could be a combination of things depending upon what’s going on. What will happen or what you can expect to have happen, is the different parties in the case are going to send written discovery demands to each other and those may be form interrogatories, special interrogatories, requests for production of documents, requests for admissions, and requests for admissions where you’re asking somebody to admit the genuineness of a document. Where we have to get records from third parties subpoenas can be issued so for example if the bank has the bank statements covering the last three years that are at issue there’s going to be a subpoena issued to the bank. If there are medical records then one or more doctors are probably going to have their records subpoenaed so we can get those records to find out what’s going on.

Understand that discovery is always going to be a two-way street anything that you can send to the opposing party they have the ability to send to you as well.

Do not expect that simply because you have made demands or what I always fear as a client who starts off the case saying I’m absolutely right there can be no question about what I’m saying this is the beginning and the end of the discussion well on the other side of the case it’s certainly not. They’re going to send discovery requests, it will be your responsibility to respond to those. Now of course we’re going to assist you with that but understand when it comes to actually producing the documents that are in your possession or answering these questions with the knowledge that only you possess ultimately this is going to require your effort. Without it, they’re practically useless because we’re relying on you to either tell us I have these documents and here they are, or yes these are the answers to the questions that have been posed. Now in addition to everything involving documents people can be questioned and that happens during depositions. Anyone who’s a party to the case can be deposed period and it’s actually a pretty simple process to get that done. It’s really not much more than sending out a notice of deposition to their attorney which sets a date at a time in a place we arrange a court reporter and of course the deposition takes place. If there are third parties and those third parties need to be subpoenaed. If they’re cooperative that’s great that always makes things easier but if these are people who for whatever reason are going to be uncooperative then we may have a process server who’s effectively going to have to chase them down to get that subpoena to them so they’ve actually been served. There’s really not much of a limit when it comes to discovery as far as how much can be done. How much is practical for your case and how much is worthwhile well that’s just going to depend on the unique facts of your case.

That’s the overview of what you can expect to have happen during the course of the case.

Here’s how the process works, a written demand was made on the trustee for an account, the trustee has 60 days in which to provide that account. If we haven’t heard from the trustee or from the trustee’s attorney so that we’ve got some kind of dialogue going on and know that we’re going to get this without court action then the next step is we’re going to draft a petition in order to compel the account. There might be other causes of action that we include in this and this is just going to depend on the specifics of your case this could be very straightforward where we’re simply gonna draft a petition that says to the judge a written demand was made 60 days have passed no account has been produced and so now judge we want an order to force the trustee to account. If you have other things happening in your case that need to be addressed immediately then those are going to be part of the petition as well.

If you are ready to start your case, then please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Should you have additional questions about trust litigation, you will find plenty of useful information in our Learning Center.