Fill and Sign the Paternity Action Form

DISCOVERY IN A PATERNITY ACTION I. Purpose of Discovery in a Paternity Action . A.M.S. § 257.62, subd. 6, M.S. ? 257.63; and M.S. § 518.551 direct the practitioner toward the evidentiary basis for determining paternity and child support in Minnesota. 1. M.S. § 257.62, subd. 6, permit entry into evidence of certified reports of properly conducted blood and genetic tests. 2. M.S. § 257.63 sets out a list of the type of evidence that may be entered into the record relating to the issue of paternity. 3. M.S. § 518.551 contains guidelines for establishing child support in the State of Minnesota and M.S. § 518.551, subd. 5(b) directs the parties to serve and file documentation of earnings and income. B. Discovery provides a basis for conducting settlement negotiations. Information gathered in the discovery process allows counsel to develop a theory of the case and point to strategies for pursuing settlement. C. Discovery is an essential element of trial Preparation. Thorough discovery is critical in the preparation of a paternity case for trial. II. How Can You Get The Information You Need ? All of the discovery tools available in any civil proceeding are available to counsel in a paternity action. These include blood and genetic testing, interrogatories, requests for production of documents, requests for admissions and depositions. A. Blood and Genetic Testing . M.S. § 257.62, subd. 1, allow the Court to order the child, mother or alleged father to submit to blood tests and upon the request of any party to an action, the Court is required to order testing. If the alleged father is dead, the Court may, and upon request of a party shall, require the decedent's parents or brothers and sisters, or both, to submit to blood tests unless the Court - 1 - makes an express finding that ordering relatives to submit to such tests presents a danger to one or more of these relatives that outweighs the child's interest in having the blood test performed. B. Interrogatories . Minnesota Rules of Civil Procedure, Rule 33, defines the procedure for the use of interrogatories and their scope and use at trial. 1. Interrogatories can be a cost-effective method of obtaining or verifying information. 2. Answers to interrogatories may lead to other discoverable information. 3. Answers to interrogatories can be verified by using other discovery techniques such as requests for production of documents or depositions. 4. Interrogatories can inquire into events surrounding the conception of the child; the course of the pregnancy; the birth of the child; the mother's living arrangements at the time of conception, during the pregnancy and after the birth of the child; as well as income and other financial information about the plaintiff. 5. Interrogatories can be used to identify the defendant; to obtain information about his relationship with the plaintiff and, in some instances, with the child; as well as to obtain information about the defendant's financial status. 6. Minnesota Rules of Civil Procedure 33.01(a) indicate that no party may serve more than a total of 50 interrogatories upon any other party unless permitted to do so by the Court upon motion, notice and a showing of good cause. In computing the total number of interrogatories, each subdivision of separate questions shall be counted as an interrogatory. This rule should be kept in mind when drafting interrogatories. While the opposing party, through counsel, will usually respond to more than 50 interrogatories, that is not always the case and the good will of the other side to answer your - 2 - discovery requests should not be relied upon. 7. Rule 33.03 of the Minnesota Rules of Civil Procedure provides that an answering party may submit business records if such records are sufficient to answer the interrogatory. 8. Interrogatories may relate to any matters which can be inquired into pursuant to Rule 26.02 and the answers may be used to the extent permitted by the Minnesota Rules of Evidence. Thus, even where an answer might not be admissible into evidence at trial, the inquiry is permitted when the response may be expected to lead to other admissible evidence. C. Requests for Production of Documents . Rule 34 of the Minnesota Rules of Civil Procedure, Production of Documents and Things and Entry Upon the Land for Inspection and Other Purposes, sets out the scope and procedure for obtaining documents as part of the discovery process. Requests for production of documents have several advantages. 1. Request for production of documents are relatively inexpensive. 2. There is no limit on the number of documents that may be requested. 3. Documents include writings, drawings, graphs, charts, photographs, phono records, and other data. Thus, inquiry is not limited to written documents. 4. Documents or other things such as drawings, graphs, charts, photographs, etc., can be copied and inspected. The original need not be produced. 5. Requests for production of documents can be served upon a party or, by use of a subpoena, to obtain documents in the hands of a third party. See Rule 34.03 of the Minnesota Rules of Civil Procedure. D. Authorizations for Release of Information . Documents or other tangibles not readily available from the opposing party can often be obtained with minimum - 3 - delay by use of authorizations for release of information. E. Entry Upon the Land for Inspection and Other Purposes . Rule 34.01 permits entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon within the scope of Rule 26.02. If real estate operations or business assets are brought into controversy, the right to enter upon the land may be a useful and necessary means of obtaining financial information that may go to the issue of child support and maternity expenses. F. Requests for Admissions . Minnesota Rules of Civil Procedure, Rule 36.01 and Rule 36.02, specify the circumstances under which requests for admission can be used and the effect of an admission. The request for admissions have a number of advantages. 1. They are fairly inexpensive. 2. They may be used to ascertain the truth of any matters discoverable within the scope of Rule 26.02 relating to statements, opinions of facts, or the application of law to fact, including the genuineness of any documents described in the request. 3. A request for admissions may be served without leave of the Court any time after service of the Summons and Petition. 4. Any matter for which an admission is requested shall be deemed admitted unless the party to whom the request is directed serves upon the requesting party a written answer or objection addressed specifically to the matter raised and signed by the party or the party's attorney within the time allowed in Rule 36.01 of the Minnesota Rules of Civil Procedure. 5. Rule 36.01 specifies that unless the Court shortens or lengthens the time for - 4 - responding, admissions must be made or objected to within 30 days after service of the requests. (A defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon that defendant.) An exception to the rule that matters are admitted unless specifically denied or objected to within the time set out for responding has been carved out by the Minnesota Supreme Court in _____________ v. _____________ , _____________ , which held that an untimely response to a request will not be deemed an admission where the requests were for an admission concerning the ultimate issue in the case. G. Depositions Upon Oral Examination, Rule 30 of the Minnesota Rules of Civil Procedure . Depositions may be recorded by means of simultaneous audio and visual electronic recording without leave of the Court or stipulation of the parties if the deposition is taken in accordance with the provision of Rule 30 of the Minnesota Rules of Civil Procedure. 1. The oral deposition is a particularly useful discovery technique for following up on answers to interrogatories and information obtained through other discovery means. 2. Depositions can be particularly useful in allowing counsel an opportunity to make judgments about the potential demeanor of a party or a witness who may be called to testify at trial. 3. Depositions may also serve the purpose of allowing counsel to get an early "fix" on the other party's theory of the case or the initial position of the other party or a witness. 4. Oral depositions also offer the advantage of allowing counsel to ask follow- up questions and move a line of questioning in directions suggested by the deponent's answers to counsel's questions. - 5 - 5. Rule 30.03 provides that examination and cross-examination of witnesses may proceed as permitted at trial pursuant to Rule 43.02. Thus, evidence objected to shall be taken subject to the objection. 6. Rule 30.04 provides that at any time during the taking of the deposition, a party or deponent, upon a showing that the examination is being conducted in bad faith or in a manner calculated to annoy, embarrass or oppress the deponent or party, may move for an order to terminate or limit the examination. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order to terminate or limit the deposition. 7. Depositions are particularly useful in that they may be used at trial for any purposes pursuant to Minnesota Rules of Civil Procedure 32.01(c) if the Court finds: (a) That the witness is dead, or (b) That the witness is at a greater distance than 100 miles from the place of trial or hearing or is out of the state unless it appears that the absence of the witness was procured by the party offering the deposition, or - 6 - (c) That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment, or (d) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or (e) Upon application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of a witness orally in open court, to allow the deposition to be used. III. Facts You Need and Potential Sources of Information . A. Complete and accurate identification of the parties and the child whose parentage is the subject of the action. This information can be obtained from: 1. Your client; 2. The opposing party; 3. Tax returns; 4. Drivers license; 5. Birth certificates; 6. Baptism records. B. The marital status and living arrangements of the parties, including present address of each party. Sources of information include: 1. Your client; 2. The opposing party; 3. Tax returns; 4. Witnesses. C. The history of the relationship between the parties, including sexual activity and claimed use of contraception, during the period of time in which conception occurred. Sources of information include: 1. Your client; 2. The opposing party; 3. Other witnesses, friends, relatives, acquaintances who have knowledge of the parties' relationship. D. Information about men other than the alleged father who had access to the plaintiff during the period of time in which conception occurred. Sources of information may include: 1. Your client; 2. The opposing party; 3. Friends or acquaintances who may have knowledge about the plaintiff's relationship with other men; 4. Court records of other men who the plaintiff has alleged to be the father of her child; 5. The child's birth certificate; 6. The child's baptismal records. E. Information regarding the child whose parentage is the subject of this action. Sources of such information will be: 1. The plaintiff; 2. Medical records; 3. Hospital records; 4. Testing records; 5. Records of registration with any religious group, such as baptism certificate; 6. State Department of Vital Statistics records; 7. Physicians' records; 8. Midwives' records or other medical or paramedical personnel who attended the plaintiff during pregnancy or who were present at or attended the delivery of the child. F. Personal reproductive information about the plaintiff. Sources for that information will include: 1. The plaintiff; 2. Her physician; 3. Medical and hospital records. G. Identification of other individuals who may have information bearing on the issues in this action. Sources of information: 1. Your client; 2. The plaintiff; 3. Relatives; 4. Friends or associates of either party. H. The relationship between the defendant and the plaintiff if any, during the pregnancy and since the birth of the child. Sources of information will include: 1. Your client; 2. The opposing party; 3. Relatives, friends, acquaintances. I. The plaintiff's source of financial support during the pregnancy and since the birth of the child. Sources of information include: 1. The plaintiff; 2. Employment records; 3. Welfare records. J. Information about the income of the defendant. Sources of information include: 1. Income tax returns (including all schedules such as K-1's); 2. Paycheck stubs for a period of no less than three months showing gross income, deductions and net pay; 3. Employment contracts; 4. Employee handbooks; 5. Employee benefit brochures; 6. Financial statements; 7. Balance sheets; 8. Banking records; 9. Telephone records; 10. 1099 forms; 11. W-2 forms; 12. Employers' verification of earning and expense reimbursement; 13. Business suppliers; 14. Subcontractors; 15. Trust officers; 16. Trust agreements and amendments; 17. Partnership agreements; 18. Partnership tax returns. K. Number of minor children claimed as dependents by the defendant other than the child whose paternity is the issue of this case. Sources of information will include: 1. The defendant; 2. Tax returns; 3. Court orders for child support. L. Accurate maternity expenses and monthly living expenses for the plaintiff and the child. Sources of information include: 1. The plaintiff; 2. Medical bills; 3. Hospital bills; 4. Bank records. The foregoing lists are merely suggestive and clearly not exhaustive. APPENDIX SAMPLE DISCOVERY TOOLS (A caveat: Discovery tools serve best when they are structured to suit the needs of a particular case. Form interrogatories and other form or boilerplate discovery tools seldom obtain optimum results. The time gained by sending out form discovery tools is often more than lost later when meaningless responses are received. Thus, the samples set out in these materials are not intended to serve every situation in every case or even any situation in any case. The samples may be useful to the reader as a starting point from which discovery devices may be formed to meet the needs of a specific paternity action.) - 11 -