Throughout litigation, parties can ask questions of and request documents from (i.e., recordings, notes, etc.) from each other in a process called generally called discovery. This allows for an information gathering regarding information pertinent to the pending matter. The information asked for does not have to be admissible in court, but potentially lead to such evidence.
Such discovery to parties (husband/wife or plaintiff/defendant) can be sent in several forms. First, interrogatories are written questions that are sent to the opposing party to be answered. For example, in a pending personal injury case, a plaintiff could send interrogatories to a defendant asking about prior driving history and insurance information. The opposing party then has thirty (30) days to respond to these questions1.
Discovery can also be sent to the opposing party requesting documents/things to be produced. These are called requests for production, and also allow the opposing party thirty (30) days to produce these documents/things2. An example would be in a child support case, father may request mother’s paystubs be provided to help determine the appropriate amount of child support. Most litigants have a general sense that is the case or the courts would grind to a halt.
However, what if the information needed by a party is not in the custody or control of the opposing party and accessible to you, the party? For example, in domestic cases, school records of absences and testing may be required to show how the child is performing in school. These records may not be in the custody of any of the parties, but solely at the school, in their records. How does a party get this third-party information? Medical records are another such item.
The rules for discovery do not allow for a party to serve interrogatories (written questions) on a non-party, but do allow for third-party requests for production3. There are additional requirements that are not necessary when sending requests for production to a party to the case. For example, the other side/party must be notified fifteen (15) days prior to the requests being sent to the non-party, and costs for producing the documents may be recovered by the third-party.
This is to give the opposing party time to object if the information is not reasonably calculated to lead to admissible evidence or needs to have controls placed over it by the court, such as highly sensitive medical records.
When information is available through a third-party, there are means to properly acquire same under the Indiana Rules of Trial Procedure. These requests often require extra time, so be aware of potential information that may not be available to the other party. This can assist your attorney in determining to whom and when to send additional discovery.
Ultimately, the take-away from this blog post is that virtually anything that is necessary for a divorce or other case, even if not provided by the opposing party, can be obtained to properly prepare a case. Sometimes this is a delayed process, and may be costly, but the point is to give the neutral judge or jury the relevant information to decide case with the complete evidentiary picture.
We hope that this blog post has been helpful in exploring the range of discovery and gathering information from outside resources. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.