Justice Nathan Hecht's Comments on Discovery to the Advanced Family Law Course August 21, 2000
Justice Nathan Hecht's Comments on Discovery to the Advanced Family Law
Course August 21, 2000
by
Kenneth G. Raggio
from the audiotape
194 Disclosures Justice Hecht said, while there was some input from the family law bar, virtually all the emphasis was placed in the rules for P.I. and business type cases. He discussed the purpose of the rule, which is voluntary explanation of the essentials of the case but not as to be burdensome and to give significant information relevant to the case in a cost effective way.
Justice Hecht said that he had received earlier this year a proposal from the Family Law Council. The following proposals were mentioned by Justice Hecht:
In all Parent-Child Suits, that the 194 Disclosure require disclosure of health insurance, net resources as defined by the Family Code (including three months payroll checks or other evidence of income and two years tax returns).
In the instance of divorce proceedings or annulment, the disclosure, needs to include all insurance coverages (health, disability, life, casualty, etc.); two years tax returns, net income/resources information, latest bank, brokerage or other financial institution statements, indices of ownership of any real property including deeds or deed of trusts; promissory notes; documents relevant to ownership of corporations, partnerships, joint ventures, stocks, bonds, or other financial assets; financial statements; the exact legal name of applicable retirement/deferred compensation plans as well as the name and address of the plan administrator; and a list of creditors.
Other items that Justice Hecht indicated were suggested to be included in 194 Disclosure are:
Under legal theories and facts, the facts documents and theory about a claim of: separate property; of reimbursement; supporting spousal maintenance; supporting variance from child support guidelines; assertions of fraudulent transfers; any tortuous conduct or contracts by a spouse or damages suffered; and finally designation of testifying experts.
Thirty Day Cutoff for Discovery. Justice Hecht said that he clearly recognized the gross inapplicability of a thirty day cutoff to family law cases, but indicated that he thought that Rule 190.5 required the Trial Court to allow information concerning changes and that certainly the Trial Court could agree to Rule 190.1 extensions of discovery. He also said that the Court has been made aware of the fact that since there is always the statutory chance of reconciliation that many times attorneys and parties put off doing discovery and therefore need to have discovery continued up to a much closer time to trial.
Subpoenas for Trial and Hearings. Justice Hecht acknowledged that there had been clammer about the thirty day return rule on discovery subpoenas but said that his reasonable interpretation of the rules was as follows:
The thirty day notice for subpoenas for discovery procedures was to give the Responding Party-presumably a third party- time to figure out what the request was and be able to formulate any objections that they had to the request. For a trial subpoena or a hearing subpoena (including for a TRO or Temporary Hearing), it was his take that since the parties would all be together for that hearing that any objections could be raised at such a hearing. Hence, Justice Hecht firmly stated that he did not think the thirty day subpoena rule was applicable either for trials or for hearings.
Finally, Justice Hecht indicated that there are two other items of concern are problems that were presented to him, one being attorney cooperation in issues such as whether the interrogatory with subparts is greater than thirty answers; and practicing attorney general requests that the Judges need to enforce the rules. He once again invited input of all lawyers to help develop and refine the Rules.
http://www.raggiolaw.com/hecht.htm09/19/00