Timing of Discovery

By: John M. Eccles, Esq.

In Nevada divorce actions, NRCP 16.2 controls just about every aspect of Discovery, including the timing.

Discovery opens automatically thirty (30) days after service of the Complaint and Summons.  [See NRCP 16.2(a)(1)(D)]  Disregard the use of the word “within” (which should have been “after”) since the consensus is the section was intended to commence discovery automatically thirty (30) days after the Complaint and Summons are served.

Furthermore, every litigant involved in a contested divorce is required to file a Financial Disclosure Form (FDF) (a copy of which is provided as an attachment at the end of this section) within forty-five (45) days after service of the Complaint and Summons.  [See NRCP 16.2(a)(1)]  Although this section does not specifically preclude uncontested cases from this requirement, the Courts have not compelled couples who have an uncontested divorce to file FDFs.  Nevertheless, there may be valid reasons to file an FDF even if the matter is contested, such as to provide a baseline income for the purposes of child support and/or alimony for future modification efforts.

There are mandatory penalties for failure to timely submit an FDF, so the deadlines associated with the filing and service of an FDF should be considered firm.  (Id.)  In addition, there are permissive penalties for omitting assets and/or liabilities on the FDF.  Under either scenario, the non-compliant party is entitled to notice and an opportunity to be heard (similar to the requirements for contempt). (Id.)

Parties are also under a continuing obligation to update their FDF within ten (10) days of it becoming inaccurate (changes in income, obligations, assets or debts) [See NRCP 16.2(a)(1)(C)]

Concurrent with the deadline for filing an FDF, each party is obliged to submit “early disclosures” to the other side – even when no such early disclosures have been requested by the other side.  [See NRCP 16.2(a)(2)]  These early disclosures should theoretically include the names, addresses and telephone numbers of anyone likely to have discoverable information, as well as any documentary evidence available at the deadline which could prove useful in the litigation.  (Id.) This would presumably include any witnesses and documentary evidence which could prove damaging to your client’s case. Put another way, NRCP 16.2(a)(2) does not permit you to withhold damaging information.

If experts are to be used in divorce litigation, the disclosure of the expert must be made 135 days after service of the Complaint and Summons.  [See NRCP 16.2(3)]  A rebuttal expert must be disclosed 195 days after service of the Complaint and Summons. (Id.)  NRCP 16.2(3) also provides details of what information related to the expert must be disclosed.

Pretrial disclosures are required to be made at least thirty (30) days prior to trial, and most objections relative to the pretrial disclosures must be made and served within fourteen (14) days of receipt, in list form.  [See NRCP 16.2(4)]  The only objections which need not be made in this manner are claims of relevance and/or prejudice, confusion, or waste of time.  (Id.)

Finally, the Court can “opt out” any requirements normally associated with NRCP 16.2 as to any litigant, if the Court finds “compelling circumstances” to do so.  [See NRCP 16.2(5)(g)]  Therefore, even the “mandatory” sanctions under NRCP 16.2(a)(1)(A) can be avoided by the Court, provided it finds compelling circumstances to do so.  The use of the word “finds” is significant, however, and from the perspective of a litigation attorney, I think the absence of the Court issuing a Finding of Fact that there are compelling circumstances to avoid imposing the terms of NRCP 16.2 on litigants would be clear error under the plain language of NRCP 16.2.

Social Networking Websites- A Potential Pitfall in Custody Litigation

By: Amanda M. Roberts, Esq.

Social networking websites have become a way for people to stay connected, to meet new people and put personal information on the internet for everyone to see.  When most users create their profile, they are not in the middle of a custody dispute.  The user profile is a way to express one’s self.  The user profile is an outlet to share preferences in music, movies, art, and common interests.   The user profile is a means to show everyone your cool side.

Unfortunately user profiles are also a buffet of easy pickings, in custody litigation.  The user profiles often contain questionnaires with specifics about alcohol consumption, narcotic use, relationship status, spending habits, gambling occurrence, and everything else imaginable.  As such, a user profile can be very effective tool in custody litigation especially in the age of technology and electronic evidence.

In addition to the user profile, social networking websites also allow users to post personal photographs.  Some personal photographs can only be described as unique- photographs using illegal drugs, abusing alcohol, displaying gun collections, and stripping off clothing.  When those types of photographs are posted, most users do not thing about how the photograph may be used in the future.  The photographs themselves may be innocent enough; sometimes the tag line that goes with the photograph is almost more damning.

As technology advances, social networking websites become easier to access.  The ease of access allows users to post up to the minute updates.  These updates are time and date stamped; allowing anyone who has access to the user profile to know where a user may be located and what activities the user is participating.

Although the profile may be marked as private, a determined person can usually find a way to access the user’s page.  I have known people to create profiles and try to “friend” someone when there really is a hidden agenda.  If there is a way someone is going to figure it out.

The lesson to be learned, watch what you post on social networking websites.  Even if you take down the user profile after custody litigation starts or mark it as private, there is reason to believe that the information has already been secured by someone.  As such, it is very possible the information posted on a social networking website may be used against you in custody litigation or divorce litigation which is relevant when the court determines spending habits and possibly hidden assets of litigants.

The judge in a custody case may be able to view photographs of a parent using illegal drugs. A judge may also be able to determine dividing a person’s time share that instead of spending time with the child (ren), a parent is out partying with friends.  These types of activities are not the message a parent wants to be sent to the person who may decide a physical custody arrangement of their child (ren).

The take away message is this- think before you post.  Or, to say it another way, when you post information on the internet, ask one question:  would the judge in my case approve?