Indianapolis Bar Association
March 8, 2012
12:30 p.m. – 1:30 p.m.
2012 Family Law Practical
Application Series:
Discovery 101
Andrew C. Mallor #9003-53
Mallor Grodner LLP
511 Woodscrest Drive
Bloomington, IN 47401
812-332-5000
812-961-6161 (Fax)
101 W. Ohio Street
Suite 1540
Indianapolis, IN 46204-1998
317-453-2000
317-631-1314 (Fax)
www.lawmg.net
Table of Contents
Biography of Andrew C. Mallor………………………………………………………….
3
I.
Introduction……………………………………………………………………
4
II.
Use of Demonstrative Evidence in a Dissolution and Discovery…………...
4
A.
Categories of Evidence Most Likely Involved……………………….
5
B.
Preparation of Exhibits……………………………………………….
5
C.
Samples of Exhibits……………………………………………………
6
D.
Presentation of Exhibits………………………………………………
7
Discovery Outline……………………………………………………………..
7
A.
In General………………………………………………………………
7
B.
Discovery Phases………………………………………………………
7
C.
Discovery Tools and Mechanisms……………………………………
9
D.
Specific Information In Divorce Cases………………………………
15
III.
IV.
Conclusion……………………………………………………….……………. 22
Acknowledgements/Sources………………………………………………….
22
Appendix A………………………………………………………………………………
24
Appendix B………………………………………………………………………………..
25
Appendix C………………………………………………………………………………..
46
Appendix D……………………………………………………………………………….
47
Appendix E……………………………………………………………………………….
52
Appendix F……………………………………………………………………………….
54
Appendix G……………………………………………………………………………….
57
ANDREW C. MALLOR
acmallor@lawmg.net
BIOGRAPHY
Andrew C. Mallor is a Partner with Mallor | Grodner LLP in
Bloomington, Indiana. Andy received his J.D. in 1974 from Indiana
University and was admitted to the Indiana bar in 1974. He has participated in numerous ICLEF workshops as chair and speaker.
PROFESSIONAL RESPONSIBILITIES,
MEMBERSHIPS & HONORS

Fellow, 1984-Present,American Academy of Matrimonial
Lawyers, Various Committees

Named a Top 50 Indiana SUPER LAWYER®, Family Law, by Law &
Politics magazine, annually since 2004

Listed in “The Best Lawyers in America” since 1989

Registered Family Law Mediator, Indiana

Certified Family Law Specialist, as certified by the Family Law
Certification Board

Original Co-chair, Indiana State Bar Association, Independent
Certifying Organization Committee for Family Law Specialties

2007 Recipient of the Gale Phelps Award

Member, International Academy of Collaborative Professionals

Member, American and Indiana State Bar Associations
MALLOR | GRODNER LLP
Bloomington / 511 Woodscrest Drive / Bloomington, Indiana 47401 / p 812.332.5000 / f 812.961.6161 / www.lawmg.net
Indianapolis / 101 West Ohio Street / Suite 1540 / Indianapolis, Indiana 46204-1998 / p 317.453.2000 / f 317.631.1314
2
I. Introduction
As all family law practitioners know, family law is one of the most challenging areas of
law today. Family law attorneys not only must be competent in many different legal areas in
order to fully and adequately advise their clients, but they need to be good communicators,
counselors and trial lawyers too. Additionally, as in most other areas of law, knowledge is
power. Family law attorneys cannot effectively represent their client’s interests unless they have
gathered, organized and analyzed all of the relevant information and documents involved in their
cases.
With this in mind, the following will address the standard discovery tools and
mechanisms used in family law cases, discuss the use of depositions as an important “discovery”
tool, and provide you with some discovery pointers and checklists that you can start using in
your practice right away.1
II. Use of Demonstrative Evidence in a Dissolution and Discovery
Teachers have long known that understanding and communication are facilitated by a
combination of audio and visual stimulation. These facts have hardly gone unnoticed in the
courtroom. Creative personal injury lawyers have been using exhibits to convey every aspect of
their cases. However, family law practitioners have not always used this teaching device in
conveying their points to the court. For whatever reason, we have been reluctant to use graphs,
pie charts, and spreadsheets in the past. The availability of the computer and the abilities of
some of those around us should encourage us to use them now. See list of software sources for
1
This outline is by no means meant to be exhaustive on any of the issues discussed. It should only be used as a
primer to refresh the practitioner’s own knowledge and understanding of some of the basic discovery issues they
may encounter in divorce cases.
3
support and taxes, “Make Excel a Family Law Power Tool,” 15 FAMILY ADVOCATE No. 3, at
6 (Winter 1993).
Exhibits should have a specific purpose. They should not be used for splash alone, and
the basic rule should always be “keep it simple.” Exhibits should clarify a point and make a
lasting impression on the judge. They should assist the witness in making his or her point and
should summarize that point. The exhibit should remind the judge one month later, when the
decisions are being made, of the point that the witness was trying to make.
A.
Categories of Evidence Most Likely Involved.
1.
Real Evidence.
This is the actual thing. For example, this may be a piece of
jewelry that is important, or a piece of art.
2.
Demonstrative Evidence. This is not the real thing, but represents or illustrates
the real thing. This could be a photograph, a diagram, a map or a model.
3.
Writings.
These are documents of legal significance.
These are written
contracts, prenuptial agreements, checks, wills, promissory notes.
4.
Records.
These are documents, such as bills, invoices, diaries, telephone
messages, report cards, medical statements.
5.
Summaries. These may be summaries of volumes of evidence, such as a list of
medical bills paid by one of the parties, or a list of the furnishings purchased during the
marriage. These may also be a summary of the testimony of one of the parties, such as
contributions of a handy carpenter spouse who has remodeled a home owned by the other spouse
during the marriage. One of the most common is a summary of the property to be divided -- the
Marital Balance Sheet.
B.
Preparation of Exhibits
4
The purpose of using the exhibits is to synthesize the point you want to make into one or
two pages, so keep the exhibit simple and reader friendly. Allow the print to be big enough and
with enough margin so that it reads easily and looks professional. Limit the information to a
single purpose.
If a mother will be asking for maintenance under Ind. Code 31-15-7-2(2)(b) because the
care for a disabled child will prevent her from being able to support herself, there is nothing
more poignant than showing the basic daily feeding and teaching care of a teenager who is
bigger than she is. The lifestyle of the parties can be well illustrated by a DVD of the home and
furnishings within.
C.
Samples of Exhibits
1.
Power point, flipchart, easel.
2.
Summary exhibits.
3.
(a)
Contributions as a spouse;
(b)
Custody requests;
(c)
Summary of assets and proposed distribution;
(d)
Balance sheet.
Pie Charts -- value of professional practice, contributions to joint marital income,
dissipation of assets, premarital or inherited contributions to joint marital properties.
4.
Bar Graphs -- changes in income in anticipation of dissolution, increases in
spending in anticipation of income.
5.
Deposition Blowup -- use for closing arguments.
6.
Photographs -- cleanliness inside of home, show wealth or lifestyle of parties,
show injuries to child or to spouse.
5
D.
Presentation of Exhibits
1.
Always have enough copies of the exhibit to give the judge one to mark on and
one for the court’s folder.
2.
In larger financial cases, use a summary exhibit and then have the individual
items relate back to the summary exhibit. Have a folder for the trial court to keep exhibits in for
easy reference. Where possible in large cases, pre-mark exhibits.
3.
Practice with client.
III. Discovery Outline.
A.
In General. In dissolution cases, there are four (4) primary stages of preparation.
1.
Definition. The first thing you must do is to define the legal issues and the
client’s particular needs and desires in connection with the legal issues.
2.
Discovery. Once you have defined the issues and the client’s needs, you must
find the assets.
3.
Valuation.
Once the assets have been defined, you must ascertain and assign
appropriate values to them.
4.
Distribution.
Once the assets have all been identified and valued, you can
evaluate the case, communicate to the client, and assist the client in pursuing realistic goals.
B.
Discovery Phases. There are two (2) primary fact-gathering “phases” in each case.
1.
Pre-Filing. This phase begins as soon as the potential client walks in your door.
You should use the first consultation to start gathering the information you will need to define
the legal issues and the client’s particular needs and desires.
6
a.
Explain the importance of gathering ALL relevant financial information.
Without ALL relevant financial information, you cannot provide your clients with proper
representation.
b.
Explain that legal advice is based upon the information supplied by the
client and such must be full, complete, and accurate.
c.
Provide client with a checklist of the financial information and supporting
documents you will need from him or her, including:
d.
i.
Brief history of the marriage;
ii.
Medical releases and authorizations;
iii.
Financial releases and authorizations.
iv.
See client document checklist attached hereto as Appendix “A”.
Keep communication with client open and fluid to ensure receipt of
additional and supplemental information and documents.
2.
Pre-Hearing. This phase begins as soon as the Petition for Dissolution is filed
and served. Of course, the work you did during the “pre-filing” phase will become the basis for
the work you do in this phase.
a.
Informal: This is the voluntary exchange of information and documents
without the use of formal discovery tools. If this can be used in the case, it can save the
parties a lot of money in terms of attorney’s fees and costs. Whether or not informal
discovery should be used is dependent upon the relationship between the parties and the
attorneys, as well as the other dynamics of cooperation in the case. Informal discovery is
not good if:
7
i.
You expect to encounter future compliance or enforcement issues
from other party.
ii.
The other party has control and access to all of the information and
your client is in the dark.
b.
Formal: This is the exchange of information and documents using the
formal discovery tools discussed in Paragraph C.
Don’t use boilerplate discovery
requests. This wastes valuable time and money for all concerned, especially your client.
Each request should be specifically tailored to the particular case.
C.
Discovery Tools and Mechanisms. Under Rule 26, Indiana Rules of Trial Procedure
(“TR”), parties in a legal action can formally obtain or “discover” information using five (5)
different methods or tools.
1.
Depositions Upon Written Questions. This discovery tool is governed by TR
31 and can be used to take the testimony of any person, including a party, by deposition upon
written questions. Compliance by witnesses can be compelled by the use of a subpoena under
TR 45.
a.
Best used to secure the testimony of witnesses with information relevant
to the issues.
b.
Can be used for a corporation, partnership, or other organization,
including government entities, in accordance with TR 30(B)(6).
2.
Written Interrogatories. This discovery tool is governed by TR 33 and can be
used to secure written answers to questions from parties.
a.
Best used earlier in a case than later because the responding party must
generally be given at least thirty (30) days to answer the questions.
8
b.
Questions can ask for opinions, contentions, or legal conclusions.
c.
Should always use to ascertain other party’s legal contentions, planned
witnesses, and potential exhibits.
3.
Production of Documents. This discovery tool is governed by TR 34 and can
be used to obtain documents from both parties and non-parties. It can also be used to secure
entry upon some land or property for inspection, measuring, surveying, photographing, testing,
or sampling such. This discovery tool can be used with TR 45 to obtain documents from third
parties relevant to the issues in the case. (See Subpoena for Production of Documents and Third
Party Request for Production of Documents attached hereto as Appendix “B”)
However, absent a waiver from the other party, a request for production or subpoena to
produce documents in conjunction therewith cannot be served on a non-party until at least fifteen
(15) days after the requesting party has served a copy of the proposed request and subpoena on
all other parties. (See Waiver attached hereto as Appendix “C”).
4.
Physical and Mental Examinations. This discovery tool is governed by TR 35
and can be used to obtain a mental or physical exam of a party when his or her physical or
mental condition is at issue in the case.
a.
If the examined party requests a report from the doctor, the requesting
party can also request a copy of the report. In addition, the examining party waives any
privilege he or she may have regarding the testimony of any other person who has
examined, or may examine, him or her with respect to the same mental or physical
condition involving the same controversy.
b.
This rule, including the waiver provisions, also applies to exams made by
the agreement of the parties, unless the agreement expressly provides otherwise.
9
5.
Requests for Admissions. This discovery tool is governed by TR 36 and can be
used to have a party admit to the truth of any matters, including the authenticity of any
documents at issue in the pending action. Requests for Admissions can be very useful if used
correctly.
a.
Requests for admissions should always be used with at least one (1)
interrogatory and request for production that forces the responding party to produce any
evidence that they have which allegedly rebuts the admissions.
(See Request for
Admission form attached as Appendix “D”).
b.
If responding party fails to admit or deny admission within the thirty (30)
days allowed, such shall be deemed for all purposes to be an admission and may be used
as such in a trial or in connection with a motion for summary judgment against the
responding party. Cross v. Cross, 891 N.E.2d 635, 638 (Ind.App. 2008).
c.
Requests for admission may properly address statements or opinions of
fact or the application of law to a fact. General Motors Corp., Chevrolet Motor Div. v.
Aetna Casualty & Surety Co., 573 N.E. 885, 888 (Ind. 1991).
d.
If responding party responds with a sworn denial of the matters stated
within the request or a sworn denial of the genuineness of the document and such matter
is later proved by the serving party, the responding party will be required to bear the
reasonable expenses incurred by the initiating party in proving the matters upon which
the admission was requested, including reasonable attorney’s fees, as provided in Trial
Rule 37(B)(2). State v. Kuespert, 411 N.E.2d 435, 436-37 (Ind. Ct. App. 1980); see also
Nesses v. Specialty Connectors Co., 564 N.E.2d 322,328 (Ind. Ct. App. 1990).
10
6.
Depositions Upon Oral Examination. Depositions are governed by Trial Rules
30 and 32. Trial Rule 30 covers the general rules for depositions and Trial Rule 32 covers the
rules when a deposition is going to be used at trial.
a.
Preparation.
Always be prepared for a deposition, whether client is
deposer or deponent. (See “client explanation letter” attached as Appendix “E”).
i.
If deposing:
-Gather and organize as much info as possible prior to deposition;
-Make copies of all documents you plan to use in deposition; and
-Prepare outline of questions and subject areas.
ii.
b.
If deponent:
-Refresh recollection of facts by reading all notes, correspondence
and pleadings;
-Tell the truth;
-Listen carefully to questions and speak clearly for record;
-Only answer immediate question; do not volunteer additional info;
-Take your time answering and do not guess at answers;
-Don’t look to attorney for answers or other affirmations; and
-If you realize a mistake in an answer, correct it right away.
Dealing with Difficult Opposing Parties/Counsel. In order to effectively
deal with difficult opposing parties or counsel in depositions:
i.
Videotape deposition;
ii.
Remain civil and calm and focus on making a record;
iii.
Seek protective orders under TR 26(C) and 30(D). Unilaterally
terminating a deposition can be risky because if the court doesn’t agree with your reasons
for doing so, you may not be allowed to finish the deposition later. As a practical matter,
it may be better to finish the deposition and then follow through with the appropriate
11
motion to compel under TR 37 or motion for protective order under TR 26.
2
(See
Request to Prohibit Public Access to Proprietary Financial Information and Notice and
Order Setting Hearing on Request to Prohibit Public Access to Proprietary Financial
Information attached as Appendix “F”).
NOTE:
The court’s power under TR 30(D) to “limit the scope and manner of taking”
depositions also includes ordering payment of deposition costs without a hearing. Briggs v.
Clinton County Bank & Trust Co., 452 N.E.2d 989, 1009 (Ind. Ct. App. 1983).
iv.
Motions to Compel under TR 37.
You should always certify
questions for court review and attempt to resolve the problem during the
deposition before seeking court intervention.
a. Unacceptable Deposition Conduct?
i. Deviations from normal trial procedure in deposition
examinations
and
cross-examinations
necessarily improper despite TR 30(C).
are
not
Smith v.
Logansport Community School Corp. 139 F.R.D. 637,
640-42 (N.D. Ind. 1991).
ii. Scope of deposition questions is governed by TR 26(B)
and therefore need only be “reasonably calculated to
lead to discovery of admissible evidence.”
iii. Repeated questions that have already been answered
may be deemed improper depending on the context.
If the court determines that a motion to compel or motion for protective order is not “substantially justified”, it
MUST award “reasonable expenses incurred in opposing the motion” UNLESS “other circumstances make an
award of expenses unjust.” Ledden v. Kuzma, 858 N.E.2d 186, 189 (Ind. Ct. App. 2006).
2
12
Smith v. Logansport Community School Corp. 139
F.R.D. 637, 646 (N.D. Ind. 1991).
iv. Length of deposition may be deemed improper
depending on circumstances. Briggs v. Clinton County
Bank & Trust Co., 452 N.E.2d 989, 1009 (Ind.App.
1983).
v. Repeated objections that effectively “coach” or suggest
answers to the deponent are improper. The Federal
Rules of Civil Procedure specifically provide that “any
objection . . . must be stated concisely and in a nonargumentative and non-suggestive manner.” (See FRCP
30(c)(2))3
vi. If using the deposition for trial, objections to the form
of questions or answers, or any other type of errors, are
waived if the error could have been corrected if the
objection was made during the deposition.
For
example, the following objections will likely be waived
if not objected to:
-Leading questions;
-Unresponsive answers;
-Answers stating a legal conclusion;
-Question assuming facts not in evidence;
-Question is argumentative;
-Compound question;
-Misleading question;
3
Authorities on the construction of the Federal Rules relating to the scope of discovery are relevant in construing
the Indiana rules. Rembold Motors, Inc. v. Bonfield, 293 N.E.2d 210, 220, 155 Ind.App. 422, 439 (Ind. Ct. App.
1973).
13
-Lack of foundation
See State v. Bailey, 714 N.E.2d 1144, 1151
(Ind.App. 1999)
D.
Specific Information In Dissolution.
1.
Employee Benefits. As employee fringe benefits increase yearly, it is critical to
obtain the documents and information necessary to identify and evaluate such.
a.
Stock options
b.
Restricted stock grants
c.
Stock-based bonus or incentive plans
d.
Profit-based bonus or incentive plans
e.
Performance-based bonus or incentive plans
f.
Life insurance policies
g.
Disability insurance policies
h.
Disability income programs
i.
Holiday/Vacation programs (including payments for unused time off)
j.
Child-care benefits
k.
Transportation and/or parking subsidies
l.
Company vehicles
m.
Auto lease or purchase programs
n.
Health club benefits
o.
Employer subsidized wellness programs
p.
Country club memberships
q.
Frequent flier miles
r.
Sports tickets
14
s.
Subsidized cafeteria or meal plans
t.
Employer provided or subsidized financial planning, tax, or legal service
plans
u.
2.
Employer provided products or services.
Businesses. In order to assist in the valuation of any relevant business assets, you
should ask for the information and documents that your expert business evaluator will likely
need.
a.
Financial statements for the last five (5) years, including balance sheets,
income statements, statements of changes in financial positions, and stockholder equity
or partner account statements.
b.
Other financial data, including:
i.
General ledgers
ii.
Journal entries
iii.
Account receivable lists
iv.
Account payable lists
v.
Check registers
vi.
List of cash accounts and significant cash investments
vii.
Equipment lists and depreciation schedules
viii.
List of inventory and accounting procedures
ix.
List of prepaid expenses
x.
List of notes payable
xi.
Compensation schedules, including all benefits and personal
expenses
15
xii.
Insurance schedules, including key person, life, property, and
casualty policies.
c.
Other operating data, including lists of shareholders or partners with
shares or interests owned, detail of transactions with related parties, organization chart.
d.
e.
Legal documents, including:
i.
Leases
ii.
Contracts
iii.
Employment agreements
iv.
Noncompete contracts
v.
Royalty agreements
vi.
Loan agreements
vii.
Employee agreements
viii.
Articles of incorporation or partnership agreements
ix.
Board meeting minutes
x.
Buy-sell agreements
xi.
Details of pending litigation
xii.
Governmental reports.
Other information, including:
i.
Brief description and history of business
ii.
Marketing information
iii.
List of stores or locations
iv.
List of states where licensed
v.
List of major accounts
16
3.
vi.
List of competitors
vii.
Resumes of key personnel
viii.
Affiliated trade associations
ix.
Appraisals and other indicators of asset values
x.
List of patents, copyrights, and trademarks
xi.
Details of company stock activity.
Hidden Income. In order to discover and identify “hidden income”, you should
ask for and scrutinize the following:
a.
Bank loan statements
b.
Bank statements
c.
Brokerage account statements
d.
Checking account statements
e.
Credit-card account statements
f.
Employee benefit handbooks
g.
Estate, gift, and inheritance tax returns
h.
Investment account statements
i.
Paycheck stubs
j.
Personal financial statements
k.
Personal income tax returns
l.
Employment contracts
m.
1099 forms
n.
K-1 forms
o.
Retirement plan documents
17
p.
Passports
q.
Wills, trust, and prenuptial agreements
r.
Deferred compensation plans
s.
Rental income.
NOTE: Don’t rely solely on tax returns and other official statements since “hidden” income will
not be included on those.
4.
Intangible Assets. You should also be on the lookout for the following which
can often lead to overlooked intangible assets:
a.
Awards and judgments
b.
Gambling winnings
c.
Blueprints
d.
Broadcast licenses
e.
Development rights
f.
Distribution rights
g.
Easements
h.
FCC rights
i.
Franchise agreements
j.
Joint venture agreements
k.
Literary rights
l.
Mineral rights
m.
Patent applications
n.
Prizes and awards
o.
Proprietary products
18
5.
p.
Security interests
q.
Trade secrets
r.
Use rights
s.
Work in progress
t.
Web domain names.
Tangible Assets. Some additional tangible assets may include the following:
a.
Airplanes
b.
Antiques/heirlooms
c.
Artworks
d.
Bonds
e.
Burial plots
f.
Safe deposit boxes
g.
Christmas club accounts
h.
Money market accounts
i.
China, silver, and crystal
j.
Coin, stamp, and sports memorabilia collections
k.
Debentures
l.
Farm assets, including animals, crops, and equipment
m.
Furniture and furnishings
n.
Furs
o.
Jewelry
p.
Musical instruments
q.
Precious metals
19
6.
r.
Time shares and vacation property
s.
Annuities and other retirement benefits
t.
Electronic equipment, including computers and cameras
u.
Sporting equipment; including boats, trailers, and guns
v.
Stocks certificates
w.
Wine or other liquor collections
Liabilities. In addition to assets, you should also identify all liabilities by asking
for the following:
a.
Mortgage statements
b.
Lines of credit or equity loan statements
c.
Loans for other assets and items, including vehicles, home improvements,
furnishings, appliances, education, and consolidated bills
d.
Loans from employers (payroll advances), insurance policies, retirement
plans, and relatives and friends
e.
Medical and dental bills
f.
Charge accounts
g.
Credit card accounts
h.
Lease payments
i.
Land contract payments
j.
Money judgments
k.
Tax liabilities, including past due taxes, estimated taxes, and real estate
taxes
20
l.
Contingent liabilities, including co-signed or guaranteed loans, potential
tort claims, potential professional liability claims.
NOTE: For a free, thorough and comprehensive web site of articles, guides, and teaching
materials on Internet search strategies and resources, see www.virtualchase.com.4
If your client wants to avoid all discovery, use the Waiver form (attached as Appendix
“G”).
III. Conclusion
As you can see from the extensive lists of potential assets and liabilities included in this
outline, there is a lot of information just waiting to be found in dissolution cases. The more
information you can obtain through discovery, the better able you will be to prepare your clients’
cases, whether for mediation, settlement negotiations or trial. On the other hand, if you do not
utilize the discovery tools that are available in each case, you run the significant risk of adversely
affecting your client’s interests and subjecting yourself to liability for mistakes and missed
assets.
Finally, with the ever-increasing technological developments of today, including websites,
internet search engines, computer-based search companies, asset locating resources, and other
such technical resources, you should never settle or otherwise conclude a case without a full and
complete handle on all of the relevant assets and liabilities involved in the case. When working
on and preparing each and every case you take, always remember that knowledge is power!
Acknowledgments/Sources. I need to acknowledge the following sources of information
used in the preparation of this outline.
1. Family Advocate, American Bar Association, Volume 23, No. 3.
4
This site was created by the Philadelphia office of Ballard, Spahr, Andrews & Ingersoll, LLP.
21
2. Family Advocate, American Bar Association, Volume 24, No. 1.
3. Family Advocate, American Bar Association, Volume 25, No. 1.
4. Family Advocate, American Bar Association, Volume 25, No. 3.
5. Family Advocate, American Bar Association, Volume 26, No. 2.
6. Verdict, Indiana Trial Lawyers Association, Volume 26, No. 2.
22
Appendix “A”
Document Checklist for New Client
APPLICABLE
CATEGORY
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
Financial declaration form
Estimated taxes/Income tax
records
Income tax returns
Personal property tax returns
Bank information
Financial statements
Loan applications
Broker’s statements
Stocks, bonds, and mutual
funds
Stock options
Pension, profit sharing,
deferred compensation
agreement, and retirement
plans
Wills and trusts agreements
Life insurance
General insurance
Outstanding debts
Accounts payable and
receivable
Cash receipt books
Real property
Sale and option agreements
Personal property
Motor vehicles
Corporate interests
Partnership and joint venture
agreements
Employment records
Fringe benefits
Employment contracts
Business records
Charge accounts
Membership cards
Judgments
Gifts
Charitable contributions
Medical/Dental bills
Tapes and photographs
Inventory of safe deposit
boxes
23
CLIENT
HAS
CLIENT
DOESN’T
HAVE
Appendix “B”
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Subpoena for Production of Documents
TO:
[NON-PARTY]
RE:
[OPPOSING PARTY]
Pursuant to Rule 45(B) of the Indiana Rules of Trial Procedure, you are commanded to
produce to the law office of [FIRM NAME] attention [ATTORNEY], [ADDRESS], [CITY],
[STATE] [ZIP], within 30 days from date of service, the following documents:
1.
True, accurate and complete copies of all Tax Returns for 2006-2011. If you do
not have the requested documents, respond in writing stating the reason(s) you do not have the
requested documents and where they are maintained.
2.
True, accurate and complete copies of all annual audited financial statements
prepared internally and by third parties, on a standalone entity basis and a consolidated basis,
with all exhibits, schedules, footnotes, and attachments from 2006-2011, including but not
limited to:
a.
year-end balance sheets,
b.
income statements,
c.
cash flow statements, and
d.
all Documents relating to the preparation, revision, and completion of any
annual financial statements created at any time.
3.
True, accurate and complete copies of all monthly audited financial statements
prepared internally and by third parties, on a standalone entity basis and a consolidated basis,
with all exhibits, schedules, footnotes, and attachments from 2006-2011, including but not
limited to:
24
a.
b.
c.
d.
balance sheets,
income statements,
cash flow statements, and
all Documents relating to the preparation, revision, and completion of any
monthly financial statements created at any time.
4.
True, accurate and complete copies of all Documents pertaining to subsequent
events (as referenced in the audited financial statements) relating to the Company.
5.
True, accurate and complete copies of all summaries of financial information
relating to the Company that would not constitute a financial statement, but nonetheless provide
certain financial data to internal or third parties for any purpose.
6.
True, accurate and complete copies of all budgets and financial forecasts relating
to the Company from 2006-2011.
7.
True, accurate and complete copies of all Documents containing working Trial
Balances, including, but not limited to, book trial balances and income tax trial balances relating
to the Company from 2006-2011.
8.
True, accurate and complete copies of all Journals relating to the Company from
2006-2011, including, but not limited to:
a.
b.
c.
d.
e.
f.
g.
h.
Sales journals and all other daily logs, monthly logs, register legends or
records and other documents detailing all sales activities;
Purchase journals and other documents detailing all purchase activity;
Cash receipts journals and all other documents detailing all cash received
during the year;
Cash disbursements journals and all other documents detailing all cash
disbursements made during the year;
All general journals;
Inventory journals and all other documents detailing inventory levels,
values, and usage;
All payroll journals and all other documents detailing amounts paid to all
employees;
All other journals related to construction in progress, deferred revenues,
deferred gross profit, customer deposits.
9.
True, accurate and complete copies of all Ledgers and subsidiary ledgers relating
to the Company from 2006-2011, including, but not limited to:
a.
b.
c.
d.
Annual general ledgers, printed in the most detailed level available, on a
stand-alone entity basis and a consolidated entity basis;
Accounts receivable ledgers and aging schedules;
Accounts payable ledgers;
Fixed asset ledgers;
25
e.
f.
g.
Payroll ledgers;
Inventory ledgers;
All other ledgers and subsidiary ledgers related to construction in
progress, deferred revenues, deferred gross profit, and customer deposits.
10.
True, accurate and complete copies of all Documents pertaining in any way to
Assets of the Company.
11.
True, accurate and complete copies of all Documents pertaining in any way to
Liabilities of the Company.
12.
True, accurate and complete copies of all ledgers, journals, and all other
Documents memorializing commitments and contingencies of the Company from 2006-2011
including, but not limited to, guarantee agreements, lease agreements, litigation, going concerns,
and consulting agreements.
13.
True, accurate and complete copies of all Documents pertaining in any way to the
equity of the Company, draws, contributions, dividends, adjustments to equity or other
transactions affecting equity.
14.
True, accurate and complete copies of all Documents pertaining to income and
expenses of the Company from 2006-2011, including, but not limited to, gross revenue, cost of
sales, operating expenses, general and administrative expenses, lease expense compensation,
interest expense, and income.
15.
True, accurate and complete copies of all your depreciation schedules including,
but not limited to, book depreciation schedules, federal tax depreciation schedules (regular tax
basis, AMT basis and ACE basis), and state tax depreciation schedules (regular tax basis, AMT
basis and ACE basis), and any Documents used in the preparation, revision, or completion of any
depreciation schedule created at any time.
16.
True, accurate and complete copies of all schedules of fixed asset acquisitions and
disposals, including, but not limited to, book basis, federal tax (regular tax, AMT and ACE
basis), and state tax (regular tax, AMT and ACE basis).
17.
True, accurate and complete copies of all Documents pertaining to risk
management of the Company.
18.
True, accurate and complete copies of all Documents memorializing related party
transactions, including, but not limited to, intercompany loans, shareholder loans, management
fees, rental fees, sales, and consulting agreements.
19.
True, accurate and complete copies of all Documents, including, but not limited to
all ledgers, journals, schedules, notes, memorandums, and correspondence, submitted to any
external accounting agency by or on behalf of the Company.
26
20.
True, accurate and complete copies of all other work papers, notes,
memorandums, and any other documents not discussed above, that are part of any other
bookkeeping files kept or maintained by the Company.
21.
True, accurate and complete copies of all electronic copies/back-ups of all
accounting files (Quicken, QuickBooks, etc.) maintained by, or on behalf of the Company.
22.
True, accurate and complete copies of all buy-sell agreements and related
documents, including, but not limited to appraisals, accountant’s working papers, and
correspondence, associated with all dissolutions and acquisitions for all business interests owned
by the Company.
23.
True, accurate and complete copies of all Documents describing the pension
plans, profit sharing plans, stock option plans, or any other deferred compensation plans owned,
managed, or controlled by the Company.
24.
True, accurate and complete copies of all governing documents for the Company,
including, but not limited to amendments to the articles of incorporation (but not the articles
themselves), amendments to the by-laws (but not the by-laws themselves), and shareholder
agreements and modifications thereto.
25.
True, accurate and complete copies of all stock books and certificates for all
classes of stock authorized and/or issued by the Company.
26.
True, accurate and complete copies of all business plans, and all drafts of business
plans, with all exhibits, schedules, and attachments, prepared by or on behalf of the Company.
27.
True, accurate and complete copies of all correspondence associated with
business plans, including but not limited to e-mails, letters and memoranda.
28.
True, accurate and complete copies of all draft and final budgets, forecasts and
projections, with all schedules, exhibits, and attachments, prepared for any purpose by, or on
behalf of the Company.
29.
True, accurate and complete listing of all sources of compensation earned by
[OPPOSING PARTY], including but not limited to salaries, director's fees, bonuses, and fringe
benefits.
30.
True, accurate and complete copies of all employee manuals and any other
Documents describing in any way the determination and calculation of salary, commissions,
bonuses or any other form of compensation earned by [OPPOSING PARTY].
31.
True, accurate and complete listing of all fringe benefits received by [OPPOSING
PARTY], including the description, amount, year received.
27
32.
True, accurate and complete copies of all employee manuals and any other
Documents which explain the benefits available to [OPPOSING PARTY], including but not
limited to rights to life insurance, health insurance, vacation time, and sick time.
33.
True, accurate and complete copies of all checks, cancelled checks, wire transfer
documents, expense reports, credit card statements, invoices, tax forms, payroll reports, and all
other Documents related to any payment made to, or on behalf of, an equity owner, including but
not limited to, loans, expense reimbursements, salary, benefits, perquisites, investments,
distributions, or any other purpose from 2006-2011.
34.
True, accurate and complete copies of all Documents which reflect any amounts
paid to, or for the benefit of [OPPOSING PARTY] from 2006-2011.
35.
True, accurate and complete copies of all Documents describing in any way the
determination and calculation of distributions or contributions by the Company or [OPPOSING
PARTY].
36.
True, accurate and complete copies of all checks and wire transfer documents
pertaining to all equity contributions made by owners of the Company from 2006-2011.
37.
True, accurate and complete copies of all checks and wire transfer documents
pertaining to all equity or profit distributions made to owners of the Company from 2006-2011.
38.
True, accurate and complete copies of all Documents listing the amounts and
dates of rental and lease income, paid or received by or on behalf of the Company from 20062011.
39.
True, accurate and complete copies of all Documents listing the amounts and
dates of royalty income, paid or received by, or on behalf of the Company from 2006-2011.
40.
True, accurate and complete copies of all Documents listing the amounts and
dates of annuity income, paid or received by, or on behalf of the Company from 2006-2011.
41.
True, accurate and complete copies of all summary plan descriptions or other
Documents that describe any pension plan, profit sharing plan, stock option plan, and any other
deferred compensation plan that [OPPOSING PARTY] has had an interest in.
42.
True, accurate and complete copies of all benefit statements for any pension plan,
profit sharing plan, stock option plan, bonus plan and any other compensation plan in which
[OPPOSING PARTY] is, or is eligible to be a participant.
43.
True, accurate and complete copies of all employment, management or consulting
agreements in effect at any time.
28
44.
True, accurate and complete copies of all budgets, schedules, notes, memoranda,
checklists, correspondence, and all other Documents relating to the preparation, revision, or
completion of employment, management, or consulting agreements created at any time.
45.
True, accurate and complete copies of all covenants not to compete in effect to
which the Company is a party.
46.
True, accurate and complete copies of all patents, copyrights, or trademarks used
by, or referring to the Company.
47.
True, accurate and complete copies of all loan agreements, other Documents, and
other information, including, but not limited to, loan statements, promissory notes, security
agreements, applications, correspondence, amortization schedules, applicable interest rate(s),
payment terms, and name of lender for all outstanding debt, including, but not limited to
mortgages, notes payable, automobile loans, and lines of credit.
48.
True, accurate and complete copies of all loan agreements, other Documents, and
other information, including, but not limited to, loan statements, promissory notes, security
agreements, applications, correspondence, amortization schedules, applicable interest rate(s),
payment terms, and name of borrower for all outstanding loans receivable, including, but not
limited to notes receivable and employee advances.
49.
True, accurate and complete copies of all lease agreements, with all amendments,
exhibits and attachments, for all leases of real or personal property.
50.
True, accurate and complete copies of all operating agreements, sales contracts,
and other documents related to any customers accounting for greater than ten (10) percent of
monthly revenues.
51.
True, accurate and complete copies of all operating agreements, purchase
contracts and other documents related to any vendors accounting for greater than ten (10) percent
of monthly purchases.
52.
True, accurate and complete copies of all agreements and other Documents
detailing any vendor or buying group relationships.
53.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed to the Company, including, but not limited to accounts
receivable subsidiary ledgers and aging schedules.
54.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed to the Company, including but not limited to retains
receivable schedules.
29
55.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed by the Company to any and all persons and entities,
including, but not limited to accounts payable subsidiary ledgers and detail schedules.
56.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing your fixed assets, including supporting documents, subsidiary ledgers,
and depreciation.
57.
True, accurate and complete copies of all Documents related to the refinancing or
restructuring of any debt obligation, including, but not limited to interest-bearing obligations or
obligations requiring the payment of preferred returns.
58.
True, accurate and complete copies of all monthly, quarterly, semi-annual and
annual statements, and other Documents describing in any way the cost, transactions, balances
and value of any and all savings, brokerage and investment accounts owned, controlled, or
managed by, or on behalf of, the Company.
59.
True, accurate and complete copies of all registers, passbooks and other
Documents describing in any way the cost, transactions, balances and value of any and all
savings, brokerage and investment accounts owned, controlled, or managed by, or on behalf of,
the Company.
60.
True, accurate and complete copies of any and all monthly, quarterly, semi-annual
and annual statements and other Documents from 2006-2011 describing in any way the
transactions, balances and payments related to any and all credit cards, debit cards, and credit
lines opened by, available to, or used by the Company, or any officer, employee, director, or any
other entity for, or on behalf of, the Company.
61.
True, accurate and complete copies of all Documents reflecting any and all tax
liabilities outstanding and/or prepaid taxes including but not limited to income taxes, property
taxes, and payroll tax taxes from 2006-2011.
62.
For all real property owned, managed, controlled by, or titled to the Company,
true, accurate and complete copies of:
a.
b.
c.
d.
e.
All deeds and any other documents that support the transfer of title;
All title policies and any other documents that convey an interest;
All promissory notes, deeds of trust, and any other documents that
describe any security on real property;
The most recent real property tax bill on the property;
The most recent billing or loan statement which reflects the payment due
and the present unpaid principal balance of each promissory note secured
by the real property.
30
63.
True, accurate and complete copies of the following for each vehicle currently
owned or leased by, or on behalf of, the Company:
a.
b.
c.
d.
e.
All documents reflecting the original lease payments, vehicle options, and
lease purchase options for any vehicle currently leased;
All pink slip and any other documents reflecting the ownership or
leasehold interest in all vehicles currently owned or leased;
The Indiana Bureau of Motor Vehicles registration card for all vehicles
currently owned or leased. For all vehicles currently owned or leased, but
registered in another state, provide the equivalent documents;
All documents reflecting the original vehicle purchase and/or vehicle
options for any vehicle currently owned;
The latest documents reflecting any monthly payments and unpaid
balances on all vehicles currently leased or purchased.
64.
True, accurate and complete copies of all appraisals and other documents
evidencing the value of the Company from 2006-2011, regardless of the purpose for which the
appraisal or other documents were prepared.
65.
True, accurate and complete copies of all reports, including draft reports, prepared
by business consultants or professionals, including but not limited to professionals or consultants
in the following areas: attorneys / law, marketing, strategic planning, industry analysis, banking,
mergers and acquisitions, market conditions, accountants, appraisers, and financing.
66.
True, accurate and complete copies of all correspondence to and from current or
prospective equity, joint venture, or debt investors, including, but not limited to e-mail
communication, memorandums and letters, and all attachments and schedules to such
correspondence.
67.
True, accurate and complete copies of all correspondence to and from any of the
[Related Business Entities], including, but not limited to e-mail communication, memorandums
and letters and all attachments and schedules to such correspondence.
68.
True, accurate and complete copies of all Documents related to investment
opportunities in closely-held business entities or real estate considered, under consideration,
rejected or accepted by, or on behalf of, the Company from 2006-2011, including, but not limited
to prospectuses, private placement memorandums, financing documents, forecasts, projects,
business plans, cash flow analyses, purchase or sale agreements, written correspondence, e-mail
correspondence, banking documents, minutes, meeting notes, legal documents, deeds, title
policies, contracts and agreements, including drafts of all documents.
69.
True, accurate and complete copies of all documents related to offers to acquire or
dispose of any business interests or real estate, received or sent from 2006-2011.
31
70.
True, accurate and complete copies of all Documents listing or describing
payments made to related persons and entities for any purpose.
71.
True, accurate and complete copies of all brochures, flyers, and other Documents
detailing the products or and prices of products offered.
72.
True, accurate and complete copies of any Documents listing or describing stocks,
partnerships, equipment, properties, business interests, notes receivable, vehicles, investments
and other assets owned by the Company.
73.
True, accurate and complete copies of any Documents listing or describing all
assets owned by the Company and used by [OPPOSING PARTY] on a part-time basis,
including, but not limited to automobiles and computers.
74.
Listing and description of any and all contingent liabilities which may impact the
value of the Company.
75.
True, accurate and complete copies of all Documents relating to contingent
liabilities of the Company, including, but not limited to judgments, complaint, and answers to
complaint.
76.
True, accurate and complete copies of all Documents pertaining to any pending or
current litigation in which you are involved.
77.
True, accurate and complete copies of all Documents reflecting amount of
withdrawals, loans or repayments from any and all pension plan, profit sharing plan, stock option
plan, and any other deferred compensation plan that Respondent has had an interest in.
78.
True, accurate and complete copies of all Documents reflecting the date
[OPPOSING PARTY] either became eligible or will become eligible to participate in any
pension plan, profit sharing plan, stock option plan, and any other deferred compensation plan.
79.
All hard disc drives or computers upon which ACCPAC, Axapta, Epicor, MAS
500, Solomon, or any other accounting software program or application files are, or were,
maintained regarding the Company’s accounting ledgers and journals, to be produced for
copying by [REQUESTING PARTY]’s forensic expert.
80.
All hard disc drives or computers upon which excel, word, wordperfect,
powerpoint, outlook, pdf, or any other software program or application files are, or were,
maintained by the Company controller in conducting business activities, to be produced for
copying by [REQUESTING PARTY]’s forensic expert.
81.
All hard disc drives or computers upon which excel, word, wordperfect,
powerpoint, outlook, pdf, or any other software program or application files are, or were,
maintained by the Company’s Management Team, including, but not limited to officers and
32
directors, in conducting business activities, to be produced for copying by [REQUESTING
PARTY]’s forensic expert.
82.
All schedules, notes, memorandums, checklists, correspondence, and all other
documents describing the accounting policies and procedures of the Company.
83.
All schedules, notes, memorandums, checklists, correspondence, and all other
documents describing the operating policies and procedures of the Company.
84.
True, accurate and complete copies of all maintenance or upkeep records prepared
at any time by, for, or on behalf of the Company or by any third party, including, but not limited
to documents reflecting regular or irregular maintenance, repairs, modifications, replacements,
inspections, certifications, or any other record reflecting any form or manner of upkeep or repair
for all vehicles and motorized equipment, including, but not limited to, cars, vans, trucks,
forklifts, loaders, or any other machinery used by the Company to conduct the Company’s
business in any way, owned or leased by, or on behalf of the Company from 2006-2011.
Dated this _______ day of March, 2012.
___________________________________
[COUNSEL FOR REQUESTING PARTY]
Attorney of Record
Certificate of Service
The undersigned hereby certifies pursuant to Rule 5 of the Indiana Rules of Trial
Procedure that a copy of the foregoing motion or pleading was served in person or by United
States First Class Mail, postage prepaid, upon all parties or their counsel of record this
day of
March, 2012, to:
[COUNSEL FOR OPPOSING PARTY]
[COUNSEL FOR REQUESTING PARTY]
33
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Third Party Request for Production
TO:
[NON-PARTY]
RE:
[OPPOSING PARTY]
[REQUESTING PARTY], pursuant to Rule 34(C) of the Indiana Rules of Trial
Procedure, requests that the above-identified entity produce and permit [REQUESTING
PARTY’S ATTORNEY], Attorney for [REQUESTING PARTY], or someone acting on his/her
behalf, to inspect and copy on or before thirty (30) days from your receipt of this letter, the
following designated documents that are in the possession, custody or control of the party upon
whom this request is served:
1.
True, accurate and complete copies of all Tax Returns for 2006-2011. If you do
not have the requested documents, respond in writing stating the reason(s) you do not have the
requested documents and where they are maintained.
2.
True, accurate and complete copies of all annual audited financial statements
prepared internally and by third parties, on a standalone entity basis and a consolidated basis,
with all exhibits, schedules, footnotes, and attachments from 2006-2011, including but not
limited to:
e.
year-end balance sheets,
f.
income statements,
g.
cash flow statements, and
34
h.
all Documents relating to the preparation, revision, and completion of any
annual financial statements created at any time.
3.
True, accurate and complete copies of all monthly audited financial statements
prepared internally and by third parties, on a standalone entity basis and a consolidated basis,
with all exhibits, schedules, footnotes, and attachments from 2006-2011, including but not
limited to:
e.
balance sheets,
f.
income statements,
g.
cash flow statements, and
h.
all Documents relating to the preparation, revision, and completion of any
monthly financial statements created at any time.
4.
True, accurate and complete copies of all Documents pertaining to subsequent
events (as referenced in the audited financial statements) relating to the Company.
5.
True, accurate and complete copies of all summaries of financial information
relating to the Company that would not constitute a financial statement, but nonetheless provide
certain financial data to internal or third parties for any purpose.
6.
True, accurate and complete copies of all budgets and financial forecasts relating
to the Company from 2006-2011.
7.
True, accurate and complete copies of all Documents containing working Trial
Balances, including, but not limited to, book trial balances and income tax trial balances relating
to the Company from 2006-2011.
8.
True, accurate and complete copies of all Journals relating to the Company from
2006-2011, including, but not limited to:
a.
b.
c.
d.
e.
f.
g.
h.
Sales journals and all other daily logs, monthly logs, register legends or
records and other documents detailing all sales activities;
Purchase journals and other documents detailing all purchase activity;
Cash receipts journals and all other documents detailing all cash received
during the year;
Cash disbursements journals and all other documents detailing all cash
disbursements made during the year;
All general journals;
Inventory journals and all other documents detailing inventory levels,
values, and usage;
All payroll journals and all other documents detailing amounts paid to all
employees;
All other journals related to construction in progress, deferred revenues,
deferred gross profit, customer deposits.
35
9.
True, accurate and complete copies of all Ledgers and subsidiary ledgers relating
to the Company from 2006-2011, including, but not limited to:
a.
b.
c.
d.
e.
f.
g.
Annual general ledgers, printed in the most detailed level available, on a
stand-alone entity basis and a consolidated entity basis;
Accounts receivable ledgers and aging schedules;
Accounts payable ledgers;
Fixed asset ledgers;
Payroll ledgers;
Inventory ledgers;
All other ledgers and subsidiary ledgers related to construction in
progress, deferred revenues, deferred gross profit, and customer deposits.
10.
True, accurate and complete copies of all Documents pertaining in any way to
Assets of the Company.
11.
True, accurate and complete copies of all Documents pertaining in any way to
Liabilities of the Company.
12.
True, accurate and complete copies of all ledgers, journals, and all other
Documents memorializing commitments and contingencies of the Company from 2006-2011
including, but not limited to, guarantee agreements, lease agreements, litigation, going concerns,
and consulting agreements.
13.
True, accurate and complete copies of all Documents pertaining in any way to the
equity of the Company, draws, contributions, dividends, adjustments to equity or other
transactions affecting equity.
14.
True, accurate and complete copies of all Documents pertaining to income and
expenses of the Company from 2006-2011, including, but not limited to, gross revenue, cost of
sales, operating expenses, general and administrative expenses, lease expense compensation,
interest expense, and income.
15.
True, accurate and complete copies of all your depreciation schedules including,
but not limited to, book depreciation schedules, federal tax depreciation schedules (regular tax
basis, AMT basis and ACE basis), and state tax depreciation schedules (regular tax basis, AMT
basis and ACE basis), and any Documents used in the preparation, revision, or completion of any
depreciation schedule created at any time.
16.
True, accurate and complete copies of all schedules of fixed asset acquisitions and
disposals, including, but not limited to, book basis, federal tax (regular tax, AMT and ACE
basis), and state tax (regular tax, AMT and ACE basis).
17.
True, accurate and complete copies of all Documents pertaining to risk
management of the Company.
36
18.
True, accurate and complete copies of all Documents memorializing related party
transactions, including, but not limited to, intercompany loans, shareholder loans, management
fees, rental fees, sales, and consulting agreements.
19.
True, accurate and complete copies of all Documents, including, but not limited to
all ledgers, journals, schedules, notes, memorandums, and correspondence, submitted to any
external accounting agency by or on behalf of the Company.
20.
True, accurate and complete copies of all other work papers, notes,
memorandums, and any other documents not discussed above, that are part of any other
bookkeeping files kept or maintained by the Company.
21.
True, accurate and complete copies of all electronic copies/back-ups of all
accounting files (Quicken, QuickBooks, etc.) maintained by, or on behalf of the Company.
22.
True, accurate and complete copies of all buy-sell agreements and related
documents, including, but not limited to appraisals, accountant’s working papers, and
correspondence, associated with all dissolutions and acquisitions for all business interests owned
by the Company.
23.
True, accurate and complete copies of all Documents describing the pension
plans, profit sharing plans, stock option plans, or any other deferred compensation plans owned,
managed, or controlled by the Company.
24.
True, accurate and complete copies of all governing documents for the Company,
including, but not limited to amendments to the articles of incorporation (but not the articles
themselves), amendments to the by-laws (but not the by-laws themselves), and shareholder
agreements and modifications thereto.
25.
True, accurate and complete copies of all stock books and certificates for all
classes of stock authorized and/or issued by the Company.
26.
True, accurate and complete copies of all business plans, and all drafts of business
plans, with all exhibits, schedules, and attachments, prepared by or on behalf of the Company.
27.
True, accurate and complete copies of all correspondence associated with
business plans, including but not limited to e-mails, letters and memoranda.
28.
True, accurate and complete copies of all draft and final budgets, forecasts and
projections, with all schedules, exhibits, and attachments, prepared for any purpose by, or on
behalf of the Company.
29.
True, accurate and complete listing of all sources of compensation earned by
[OPPOSING PARTY], including but not limited to salaries, director's fees, bonuses, and fringe
benefits.
37
30.
True, accurate and complete copies of all employee manuals and any other
Documents describing in any way the determination and calculation of salary, commissions,
bonuses or any other form of compensation earned by [OPPOSING PARTY].
31.
True, accurate and complete listing of all fringe benefits received by [OPPOSING
PARTY], including the description, amount, year received.
32.
True, accurate and complete copies of all employee manuals and any other
Documents which explain the benefits available to [OPPOSING PARTY], including but not
limited to rights to life insurance, health insurance, vacation time, and sick time.
33.
True, accurate and complete copies of all checks, cancelled checks, wire transfer
documents, expense reports, credit card statements, invoices, tax forms, payroll reports, and all
other Documents related to any payment made to, or on behalf of, an equity owner, including but
not limited to, loans, expense reimbursements, salary, benefits, perquisites, investments,
distributions, or any other purpose from 2006-2011.
34.
True, accurate and complete copies of all Documents which reflect any amounts
paid to, or for the benefit of [OPPOSING PARTY] from 2006-2011.
35.
True, accurate and complete copies of all Documents describing in any way the
determination and calculation of distributions or contributions by the Company or [OPPOSING
PARTY].
36.
True, accurate and complete copies of all checks and wire transfer documents
pertaining to all equity contributions made by owners of the Company from 2006-2011.
37.
True, accurate and complete copies of all checks and wire transfer documents
pertaining to all equity or profit distributions made to owners of the Company from 2006-2011.
38.
True, accurate and complete copies of all Documents listing the amounts and
dates of rental and lease income, paid or received by or on behalf of the Company from 20062011.
39.
True, accurate and complete copies of all Documents listing the amounts and
dates of royalty income, paid or received by, or on behalf of the Company from 2006-2011.
40.
True, accurate and complete copies of all Documents listing the amounts and
dates of annuity income, paid or received by, or on behalf of the Company from 2006-2011.
41.
True, accurate and complete copies of all summary plan descriptions or other
Documents that describe any pension plan, profit sharing plan, stock option plan, and any other
deferred compensation plan that [OPPOSING PARTY] has had an interest in.
38
42.
True, accurate and complete copies of all benefit statements for any pension plan,
profit sharing plan, stock option plan, bonus plan and any other compensation plan in which
[OPPOSING PARTY] is, or is eligible to be a participant.
43.
True, accurate and complete copies of all employment, management or consulting
agreements in effect at any time.
44.
True, accurate and complete copies of all budgets, schedules, notes, memoranda,
checklists, correspondence, and all other Documents relating to the preparation, revision, or
completion of employment, management, or consulting agreements created at any time.
45.
True, accurate and complete copies of all covenants not to compete in effect to
which the Company is a party.
46.
True, accurate and complete copies of all patents, copyrights, or trademarks used
by, or referring to the Company.
47.
True, accurate and complete copies of all loan agreements, other Documents, and
other information, including, but not limited to, loan statements, promissory notes, security
agreements, applications, correspondence, amortization schedules, applicable interest rate(s),
payment terms, and name of lender for all outstanding debt, including, but not limited to
mortgages, notes payable, automobile loans, and lines of credit.
48.
True, accurate and complete copies of all loan agreements, other Documents, and
other information, including, but not limited to, loan statements, promissory notes, security
agreements, applications, correspondence, amortization schedules, applicable interest rate(s),
payment terms, and name of borrower for all outstanding loans receivable, including, but not
limited to notes receivable and employee advances.
49.
True, accurate and complete copies of all lease agreements, with all amendments,
exhibits and attachments, for all leases of real or personal property.
50.
True, accurate and complete copies of all operating agreements, sales contracts,
and other documents related to any customers accounting for greater than ten (10) percent of
monthly revenues.
51.
True, accurate and complete copies of all operating agreements, purchase
contracts and other documents related to any vendors accounting for greater than ten (10) percent
of monthly purchases.
52.
True, accurate and complete copies of all agreements and other Documents
detailing any vendor or buying group relationships.
53.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed to the Company, including, but not limited to accounts
receivable subsidiary ledgers and aging schedules.
39
54.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed to the Company, including but not limited to retains
receivable schedules.
55.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing the amounts owed by the Company to any and all persons and entities,
including, but not limited to accounts payable subsidiary ledgers and detail schedules.
56.
True, accurate and complete copies of all Documents listing, containing, or
otherwise representing your fixed assets, including supporting documents, subsidiary ledgers,
and depreciation.
57.
True, accurate and complete copies of all Documents related to the refinancing or
restructuring of any debt obligation, including, but not limited to interest-bearing obligations or
obligations requiring the payment of preferred returns.
58.
True, accurate and complete copies of all monthly, quarterly, semi-annual and
annual statements, and other Documents describing in any way the cost, transactions, balances
and value of any and all savings, brokerage and investment accounts owned, controlled, or
managed by, or on behalf of, the Company.
59.
True, accurate and complete copies of all registers, passbooks and other
Documents describing in any way the cost, transactions, balances and value of any and all
savings, brokerage and investment accounts owned, controlled, or managed by, or on behalf of,
the Company.
60.
True, accurate and complete copies of any and all monthly, quarterly, semi-annual
and annual statements and other Documents from 2006-2011 describing in any way the
transactions, balances and payments related to any and all credit cards, debit cards, and credit
lines opened by, available to, or used by the Company, or any officer, employee, director, or any
other entity for, or on behalf of, the Company.
61.
True, accurate and complete copies of all Documents reflecting any and all tax
liabilities outstanding and/or prepaid taxes including but not limited to income taxes, property
taxes, and payroll tax taxes from 2006-2011.
62.
For all real property owned, managed, controlled by, or titled to the Company,
true, accurate and complete copies of:
a.
b.
c.
d.
e.
All deeds and any other documents that support the transfer of title;
All title policies and any other documents that convey an interest;
All promissory notes, deeds of trust, and any other documents that
describe any security on real property;
The most recent real property tax bill on the property;
The most recent billing or loan statement which reflects the payment due
40
and the present unpaid principal balance of each promissory note secured
by the real property.
63.
True, accurate and complete copies of the following for each vehicle currently
owned or leased by, or on behalf of, the Company:
a.
b.
c.
d.
e.
All documents reflecting the original lease payments, vehicle options, and
lease purchase options for any vehicle currently leased;
All pink slip and any other documents reflecting the ownership or
leasehold interest in all vehicles currently owned or leased;
The Indiana Bureau of Motor Vehicles registration card for all vehicles
currently owned or leased. For all vehicles currently owned or leased, but
registered in another state, provide the equivalent documents;
All documents reflecting the original vehicle purchase and/or vehicle
options for any vehicle currently owned;
The latest documents reflecting any monthly payments and unpaid
balances on all vehicles currently leased or purchased.
64.
True, accurate and complete copies of all appraisals and other documents
evidencing the value of the Company from 2006-2011, regardless of the purpose for which the
appraisal or other documents were prepared.
65.
True, accurate and complete copies of all reports, including draft reports, prepared
by business consultants or professionals, including but not limited to professionals or consultants
in the following areas: attorneys / law, marketing, strategic planning, industry analysis, banking,
mergers and acquisitions, market conditions, accountants, appraisers, and financing.
66.
True, accurate and complete copies of all correspondence to and from current or
prospective equity, joint venture, or debt investors, including, but not limited to e-mail
communication, memorandums and letters, and all attachments and schedules to such
correspondence.
67.
True, accurate and complete copies of all correspondence to and from any of the
[Related Business Entities], including, but not limited to e-mail communication, memorandums
and letters and all attachments and schedules to such correspondence.
68.
True, accurate and complete copies of all Documents related to investment
opportunities in closely-held business entities or real estate considered, under consideration,
rejected or accepted by, or on behalf of, the Company from 2006-2011, including, but not limited
to prospectuses, private placement memorandums, financing documents, forecasts, projects,
business plans, cash flow analyses, purchase or sale agreements, written correspondence, e-mail
correspondence, banking documents, minutes, meeting notes, legal documents, deeds, title
policies, contracts and agreements, including drafts of all documents.
41
69.
True, accurate and complete copies of all documents related to offers to acquire or
dispose of any business interests or real estate, received or sent from 2006-2011.
70.
True, accurate and complete copies of all Documents listing or describing
payments made to related persons and entities for any purpose.
71.
True, accurate and complete copies of all brochures, flyers, and other Documents
detailing the products or and prices of products offered.
72.
True, accurate and complete copies of any Documents listing or describing stocks,
partnerships, equipment, properties, business interests, notes receivable, vehicles, investments
and other assets owned by the Company.
73.
True, accurate and complete copies of any Documents listing or describing all
assets owned by the Company and used by [OPPOSING PARTY] on a part-time basis,
including, but not limited to automobiles and computers.
74.
Listing and description of any and all contingent liabilities which may impact the
value of the Company.
75.
True, accurate and complete copies of all Documents relating to contingent
liabilities of the Company, including, but not limited to judgments, complaint, and answers to
complaint.
76.
True, accurate and complete copies of all Documents pertaining to any pending or
current litigation in which you are involved.
77.
True, accurate and complete copies of all Documents reflecting amount of
withdrawals, loans or repayments from any and all pension plan, profit sharing plan, stock option
plan, and any other deferred compensation plan that Respondent has had an interest in.
78.
True, accurate and complete copies of all Documents reflecting the date
[OPPOSING PARTY] either became eligible or will become eligible to participate in any
pension plan, profit sharing plan, stock option plan, and any other deferred compensation plan.
79.
All hard disc drives or computers upon which ACCPAC, Axapta, Epicor, MAS
500, Solomon, or any other accounting software program or application files are, or were,
maintained regarding the Company’s accounting ledgers and journals, to be produced for
copying by [REQUESTING PARTY]’s forensic expert.
80.
All hard disc drives or computers upon which excel, word, wordperfect,
powerpoint, outlook, pdf, or any other software program or application files are, or were,
maintained by the Company controller in conducting business activities, to be produced for
copying by [REQUESTING PARTY]’s forensic expert.
42
81.
All hard disc drives or computers upon which excel, word, wordperfect,
powerpoint, outlook, pdf, or any other software program or application files are, or were,
maintained by the Company’s Management Team, including, but not limited to officers and
directors, in conducting business activities, to be produced for copying by [REQUESTING
PARTY]’s forensic expert.
82.
All schedules, notes, memorandums, checklists, correspondence, and all other
documents describing the accounting policies and procedures of the Company.
83.
All schedules, notes, memorandums, checklists, correspondence, and all other
documents describing the operating policies and procedures of the Company.
84.
True, accurate and complete copies of all maintenance or upkeep records prepared
at any time by, for, or on behalf of the Company or by any third party, including, but not limited
to documents reflecting regular or irregular maintenance, repairs, modifications, replacements,
inspections, certifications, or any other record reflecting any form or manner of upkeep or repair
for all vehicles and motorized equipment, including, but not limited to, cars, vans, trucks,
forklifts, loaders, or any other machinery used by the Company to conduct the Company’s
business in any way, owned or leased by, or on behalf of the Company from 2006-2011.
You are advised that the person, firm or corporation to whom this request is directed is
entitled to security against damages or payment of damages resulting from this request and that it
may respond to such request by submitting to its terms, by proposing different terms, by
objecting specifically or generally to the request by serving a written response to
[REQUESTING PARTY] through the undersigned attorney or by moving to quash this request
as permitted by Rule 45(B) of the Indiana Rules of Trial Procedure.
If you fail to respond, or if you object, then [REQUESTING PARTY] may move for an
order compelling discovery pursuant to Rule 37(A) of the Indiana Rules of Trial Procedure with
respect to any such response or objection. If the Court grants such order, it may condition relief
upon the prepayment of damages to be proximately incurred to the person to whom the request is
directed or require an adequate surety bond or other indemnity conditioned against such
damages.
43
[FIRM]
[COUNSEL FOR REQUESTING PARTY]
Certificate of Service
The undersigned hereby certifies pursuant to Rule 5 of the Indiana Rules of Trial
Procedure that a copy of the foregoing motion or pleading was served in person or by United
States First Class Mail, postage prepaid, upon all parties or their counsel of record this
day of
March, 2012, to:
[COUNSEL FOR OPPOSING PARTY]
[COUNSEL FOR REQUESTING PARTY]
44
Appendix “C”
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Waiver of Fifteen Day Period
[COUNSEL] of [FIRM], on behalf of the [OPPOSING PARTY] hereby agrees to waive
the fifteen (15) day period set forth in Rule 34(C) of the Indiana Rules of Trial Procedure.
Upon counsel for [REQUESTING PARTY]’s receipt of this Waiver, the Subpoena
and/or Request for Production of Documents previously sent to the undersigned may be served
upon [NON-PARTY]
Respectfully submitted,
_______________________________
[COUNSEL FOR OPPOSING PARTY]
45
Appendix “D”
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Request for Admissions, Interrogatories and
Request for Production of Documents
[REQUESTING PARTY], by counsel, [COUNSEL FOR REQUESTING PARTY] of
[FIRM] pursuant to Trial Rule 36, requests, [OPPOSING PARTY], to admit or deny under oath
no later than thirty (30) days after service, unless the Court has ordered a shorter or longer time
for response, the following admissions.
I. Request for Admissions
Preliminary Statement
The answers shall admit all matters contained in such request or specifically deny the
matter or matters. The denial shall fairly meet the substance of the requested admission, and
when good faith requires that a party qualify his or her answers or deny only a part of the matter,
he or she shall specify so much of it is true and qualify or deny the remainder.
As an answering party, you may not give lack of information or knowledge as a reason
for failure to admit or deny, unless you state you have made a reasonable inquiry and that the
information obtainable is insufficient to enable the admission or denial of the requested matter.
Failure to admit or deny or object within 30 days of the date of service, or within the time
allowed by the Court, if less, shall be deemed for all purposes to be an admission and may be
46
used as such in a trial of the within cause unless the Court on motion permits withdrawal or
amendment of the admission. Indiana Trial Rule 36(B). Requests for admissions may properly
address statements or opinions of fact or the application of law to a fact. See, Brown v. Union
Oil Company of California, 406 N.E.2d 1218, 1220 (1980). Any admission made by you is for
the purpose of the pending action only and is not an admission for any other purpose nor may it
be used against you in any other proceeding.
If you fail to admit to the genuineness of the document or the truth of any matter as
requested and such matter is later proved by the party serving the Request for Admissions, you
may be required to bear the reasonable expenses incurred by the initiating party in proving the
matters upon which the admission was requested, including reasonable attorney’s fees, as
provided in Trial Rule 37(C).
ADMISSIONS
1.
[REQUESTS FOR ADMISSION]
ADMIT:
AFFIRMED UNDER
__________________, 2016.
PENALTIES
OF
PERJURY,
this
____
___________________________________
[OPPOSING PARTY]
Submitted by:
[FIRM]
[COUNSEL FOR REQUESTING PARTY]
47
day
of
II. Interrogatories
[REQUESTING PARTY], by counsel, [COUNSEL FOR REQUESTING PARTY] of
[FIRM], submits the following interrogatories to [OPPOSING PARTY], to be answered under
oath, fully, positively and without evasion within thirty (30) days of service, unless the Court has
ordered a shorter or longer time for response.
Duties of the Answering Party
You are directed to furnish all requested information, not subject to a valid objection, that
is known by, or available or accessible to you or any of your attorneys, consultants,
representatives, or other agents.
If you are unable to answer fully any of these interrogatories, you must answer the
interrogatory to the fullest extent possible. An evasive or incomplete is deemed a failure to
answer under Indiana Trial Rule 37(A)(3).
You must supplement your responses to these Interrogatories without being requested to
do so (i) as to information subsequently acquired which would be responsive to any interrogatory
requesting the identification and location of persons having knowledge of discoverable matters;
and (ii) as to any response when it is discovered to have been incorrect when made or discovered
to be no longer true and circumstances are such that a failure to amend the response is in
substance a knowing concealment pursuant to Trial Rule 26(E).
“SEPARATION DATE” means the date the Petition for Dissolution was filed.
INTERROGATORIES
If your response to the Request for Admission is anything other than an unqualified
admission, please state, with specificity, and as you would intend to testify at trial, and produce
documentation with regard to the following:
48
1.
Please state your name, current address, date of birth, and social security number.
ANSWER:
2.
For each Request for Admission you denied or objected to, please state:
a. The reason you denied or objected to the requested admission;
b. Your contention of fact;
c. The witnesses and exhibits you will present at trial to refute the requested
admission;
d. A summary of the testimony of the witnesses who you state have information
supporting an alleged inaccuracy in the Request for Admission;
ANSWER:
3.
If the alleged inaccuracy of the Request for Admission is a matter of Indiana law,
please identify the specific case law or statutory authority supporting your allegation that the
Request for Admission is inaccurate.
ANSWER:
AFFIRMED UNDER
__________________, 2016.
PENALTIES
OF
PERJURY,
this
____
___________________________________
[OPPOSING PARTY]
Submitted by:
[FIRM]
[COUNSEL FOR REQUESTING PARTY]
49
day
of
III. Request for Production of Documents
Pursuant to Indiana Trial Rule 34, [REQUESTING PARTY], by counsel, [COUNSEL
FOR REQUESTING PARTY] of [FIRM], submits the following to [OPPOSING PARTY], to
produce the following documents within thirty (30) days from the date of service, unless the
Court has ordered a shorter or longer time for response.
1.
Identify and produce for inspection and copying each document you content
supports your contention that the Request for Admission is inaccurate.
RESPONSE:
Certificate of Service
The undersigned hereby certifies pursuant to Rule 5 of the Indiana Rules of Trial
Procedure that a copy of the foregoing motion or pleading was served in person or by United
States First Class Mail, postage prepaid, upon all parties or their counsel of record this
day of
_________, 2012, to:
[COUNSEL FOR OPPOSING PARTY]
[COUNSEL FOR REQUESTING PARTY]
50
Appendix “E”
March 8, 2012
[RESPONDING PARTY]
[RESPONDING PARTY ADDRESS]
[RESPONDING PARTY CIT, STATE ZIP]
Re:
Dissolution of Marriage
Dear [RESPONDING PARTY]:
You have been advised that your deposition is going to be taken by the opposing counsel in this
matter. In order to prepare you for such, what follows is a list of instructions that I request you
review thoroughly before your deposition. The purpose of these instructions is to inform you
what a deposition is, why it is being taken, how it will be taken and the pitfalls to avoid during its
taking.
1. What is a deposition? A deposition is your testimony under oath. You will be asked
questions by the opposing counsel and the proceedings and all questions and answers
will be recorded by an official court reporter. During your deposition, your attorney will
be with you along with your spouse and his or her attorney. There is little difference
between the testimony at a deposition and the testimony in the courtroom with the
exception that the judge will not be presiding and ruling over matters as they arise. If
any matters arise that require the judge’s ruling, they will be dealt with subsequent to the
deposition.
2. The purposes of a deposition. Opposing counsel may take your deposition for three (3)
reasons:
a. To find out your personal knowledge of the facts and issues in the case.
b. To commit you to a specific story and set of facts so that you will be have to tell
the same story at the final hearing.
c. To try to catch you in a lie, either at the deposition or by comparing your
deposition testimony with your in-court testimony or other statements. This is
called impeachment and its purpose is to persuade the judge that you are not
truthful and should not be believed as to any matters in the case.
3. Preparing for the deposition. Before your deposition, refresh your recollection by
reading any notes you have made about the case and all the pleadings and
correspondence provided by me. However, do not bring these items, or any other
51
documents, to the deposition unless I otherwise advise. Also, do not try to memorize any
statements or other answers you have previously given. Just focus on telling the truth
and providing information you have readily available. You are not required to remember
everything and if you do not remember, just say so.
4. General suggestions.
a. Speak audibly and clearly so the court reporter can record your answers. Do not
respond by gesturing or nodding your head.
b. Always tell the truth.
c. Listen carefully to each question and make sure you understand it.
d. Answer only what you are asked and do not volunteer additional information.
e. Remain calm and collected at all times.
f. Do not look to me for answers because I am not allowed to coach you.
g. Do not interrupt the opposing counsel when he or she is speaking. Only one
person can be recorded by the court reported at a time.
h. If you need to take a break, just advise the opposing counsel.
After you have read all these suggestions, please write down any questions that you have so that
we can discuss them prior to the deposition.
We appreciate your cooperation.
Yours truly,
[COUNSEL FOR RESPONDING PARTY]
52
Appendix “F”
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Request to Prohibit Public Access to
Proprietary Financial Information
Comes now, [REQUESTING PARTY] by counsel, [COUNSEL FOR REQUSTING
PARTY], and pursuant to Ind. Adminstrative Rule 9(H), moves the Court, after public notice and
a hearing after such notice, to prohibit public access to the proprietary information of the
business entities referenced below which will be presented in the evidence; be the subject of
certain of the Exhibits; and, as such will be a part of the record in the above entitled cause and in
support thereof states:
1.
Admin. R. 9 (G)(1) Case Records (c) grants this Court the authority to enter an
Order excluding information from public access.
2.
Admin. R. 9 (1.1) grants this Court the authority to close Court proceedings to the
public when the information which is the subject of such an Order is admitted into evidence.
3.
The trial of this action will include evidence as to the value of [REQUESTING
PARTY]’s interests in business and professional entities, including but not limited to:
a. [NON-PARTY ENTITIES]
4.
The evidence will include tax returns and other proprietary financial information
of such entities.
53
5.
The public interest will be substantially served by prohibiting public access.
6.
Access or dissemination of the information will create a significant risk of
substantial harm to [REQUESTING PARTY] and the above described entities all of whom
requested a Protective Order during discovery under Ind. Rule 26 as a condition of responding to
the discovery requests herein. The Court granted such Orders. A Protective Order Prohibiting
public access to the proprietary financial information during the trial is now required.
7.
A substantial prejudicial effect to the on-going proceedings cannot be avoided
without prohibiting public access.
8.
[REQUESTING PARTY] has, by service of a copy of this Request, on their
counsel [COUNSEL FOR NON-PARTY ENTITIES], given noticed to the above referenced
entities.
9.
[REQUESTING PARTY] requests the Court post the required public notice in the
Courthouse [CITY, COUNTY, STATE].
WHEREFORE, [REQUESTING PARTY], by counsel, prays the Court enter its Order in
the particulars above set forth and for all other relief proper in the premises.
____________________________________
[COUNSEL FOR REQUESTING PARTY]
Certificate of Service
The undersigned hereby certifies pursuant to Rule 5 of the Indiana Rules of Trial
Procedure that a copy of the foregoing motion or pleading was served in person or by United
States First Class Mail, postage prepaid, upon all parties or their counsel of record this
day of
_________, 2012, to:
[COUNSEL FOR OPPOSING PARTY]
[COUNSEL FOR REQUESTING PARTY]
54
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Notice and Order Setting Hearing on Request to Prohibit
Public Access to Proprietary Financial Information
PLEASE TAKE NOTICE that, [REQUESTING PARTY], by counsel [COUNSEL FOR
REQUESTING PARTY] has filed a Request to Prohibit Public Access to Proprietary Financial
Information (the “Request”) in the above entitled cause in which he/she seeks an order of this
Court prohibiting public access to the portion of the trial evidence; and/or, record in which proof
is presented relating to the proprietary business information and financial affairs of any, or all, of
the following entities:
[NON-PARTY ENTITIES]
IT IS HEREBY ORDERED that a hearing is set on the Request on the ____ day of
_____________, 2012, at _____________ o’clock ____.m. fifteen (15) minutes allotted, in the
_________ Court, [Address], [City], [State] [Zip], for the purpose of ruling on the Request.
IT IS FURTHER ORDERED that: a) the Clerk of this Court is to immediately post a
copy of this Order at the place in which public notices are posted at the Courthouse [City],
[County], [State]; and b) [COUNSEL FOR REQUSTING PARTY], attorney for
[REQUESTING PARTY], is to serve a copy of the Request and this Order on the following
entities and make due return thereon:
[NON-PARTY ENTITIES]
___________________________________
[Judge]
DISTRIBUTION:
[COUNSEL FOR REQUESTING PARTY]
[COUNSEL FOR OPPOSING PARTY]
55
Appendix “G”
STATE OF INDIANA
IN THE [COUNTY] [CIRCUIT/SUPERIOR] COURT
CAUSE NO. _____________
IN RE THE MARRIAGE OF:
[PETITIONER],
Petitioner,
and
[RESPONDENT],
Respondent.
Waiver of Discovery
[CLIENT], having been duly advised of discovery and investigative procedures, which
can be undertaken by [his/her] counsel, [COUNSEL], in the above captioned matter, states as
follows:
1.
I understand that while my divorce case is pending and not over, my attorney has
the right under the Indiana Rules of Trial Procedure, to undertake procedures known as
“discovery” to learn what assets and liabilities may exist in my Dissolution of Marriage action.
2.
I understand that my attorney has the right to take a deposition or sworn statement
from my [wife/husband], [SPOUSE’S NAME], about any asset or liability both pre and post
marital, which exist now or at any time during the marriage which information could be used for
the settlement or trial of this matter.
3.
I understand that my attorney can issue written questions to my [wife/husband],
known as interrogatories, as to assets or liabilities existing prior to or during the marriage, which
questions my [wife/husband] would be required to answer under oath which information could
be used for the settlement or trial of this matter.
4.
I understand that my attorney can require my [wife/husband] to produce for copy
and inspection written documents which may have existed prior to or during the marriage. These
documents include back tax returns, company pension and profit sharing information; the
existence of bank accounts, stock, bonds, and other financial assets to which I may be entitled
which information could be used for the settlement or trial of this matter.
56
5.
I understand that my attorney can submit questions to my [wife/husband]
requiring [her/him] to admit or deny certain specific matters under oath, which information could
be used for the settlement or trial of this matter.
6.
I understand that my attorney can file a motion directing third parties such as my
[wife/husband]’s employer or financial institutions to supply requested information to the Court,
which could assist me in settlement or trial of this matter have in my spouse’s pension benefits at
either prior or current places of employment which information could be used for the settlement
or trial of this matter.
7.
I understand that the term “Property” includes the right to receive certain pension
or retirement benefits or the right to receive disposable retired or retainer pay, that upon final
separation the Court can divide the property of the parties by several means, including ordering
the distribution of pension or retirement benefits or disposable retired or retainer pay, as
specified by setting aside to either of the parties, a percentage of those payments either by
assignment or in kind at the time of receipt.
8.
I understand that my attorney, [COUNSEL], has explained the September 1985,
amendment regarding the Indiana Domestic Relations Law as it relates to pension benefits. I
understand that after September 1, 1985, pension benefits are considered marital property, and I
knowingly waive any right, title and interest I may have in my [wife/husband]’s pension if any,
and other retirement benefits he may have.
9.
I understand that this waiver is a knowing and knowledgeable waiver and may not
be reviewed at a later date. By this waiver, I hereby forego any right to pursue these legal rights
of the various discovery procedures at a later date.
10.
I understand my rights as set out above and knowingly choose not to undertake
any discovery and furthermore, I waive any and all right I may have in my [wife/husband]’s
pension and/or profit sharing or other retirement plans he may have at where he is employed. I
FURTHER ACKNOWLEDGE THAT I DO THIS AGAINST THE ADVICE OF MY
ATTORNEY.
I, [CLIENT’S NAME], AFFIRM UNDER THE PENALTIES OF PERJURY, THAT THE
FOREGOING STATEMENTS ARE TRUE.
Dated:
[CLIENT]
PREPARED BY:
[COUNSEL]
57