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If the Respondent requests documents for discovery, do they automatically have to provide the Petitioner with the same documents

Tigard, OR |

the Respondent's lawyer filed an order for discovery via ORS 107.089 and I have already complied. Is the Respondent automatically required to provide the same documents as requested or do I have to make a request and file the request with the court? If he is automatically required to provide his information, am I correct in my interpretation that he has 30 days following my being served to do so? It is 22 days past what would be his 30 day deadline and I have already made a request via email to his lawyer indicating which documents have not been provided or addressed by him. How can I file a motion to compel under ORCP 46; I cannot locate a form anywhere and Stevens-Ness says there is no such thing as a Motion to Compel, but it is named in the ORS 107.089 literature. Family Law Case

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Attorney answers 2

Posted

No, they aren't automatically compelled to provide the same documents that they ask for. However, you have the right to make requests for production of documents to them, just as they've made such requests to you. If you haven't made a request yet, then they have no deadline for responding to one.

There are some documents that each side is expected to produce for the other in a family law case where child support could potentially be at issue. They include a Uniform Support Declaration under UTCR 8.010(5); four recent pay stubs, and most recent Federal and state tax returns. Other fields of law may have other requirements. But in general, people don't have to produce things for you unless you ask for them.

Nothing posted on this site is intended to create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com

Asker

Posted

Statute ORS 107.089 states that if you serve a copy of ORS 107.089 on the other party, both sides shall provide the other party copies. I apologize as I am taking this as literal translation and law terms are never literal. Is there a specific form and proof of service that I can file?

Jay Bodzin

Jay Bodzin

Posted

Yes, that statute covers the automatic-production documents I referred to. I don't know know whether your opposing side asked for more documents than that, in your case. I'm not aware of any pre-made request for production forms. This is one of the reasons you need to consult with an attorney, in private. Representing yourself, as you are finding, is very difficult, especially when the other side is not.

Asker

Posted

I have only received 2011 tax returns, a notice that no 2009, 2010 returns were filed and 3 months worth of payroll stubs. Do I have to have to file my own discovery order to get the items required in ORS 107.089 listed below or can I file a motion to compel? 107.089¹ Documents parties must furnish to each other • effect of failure to furnish (1) If served with a copy of this section as provided in ORS 107.088 (Clerk of court to furnish certain information when petition is filed), each party in a suit for legal separation or for dissolution shall provide to the other party copies of the following documents in their possession or control: (a) All federal and state income tax returns filed by either party for the last three calendar years; (b) If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year; (c) All records showing any income earned or received by either party for the current calendar year; (d) All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years; (e) All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest; (f) All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due; (g) Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either partys name or in which either party has any interest; (h) Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest; (i) The most recent statement describing any retirement plan, IRA pension plan, profit-sharing plan, stock option plan or deferred compensation plan in which either party has any interest; and (j) All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed.

Jay Bodzin

Jay Bodzin

Posted

In theory you shouldn't have to, but not all lawyers promptly comply with this all the time. If you want to be sure of getting documents, you need to send the other side a Request for Production of Documents in proper form.

Joanne Reisman

Joanne Reisman

Posted

Nope you don't have to do an additional request for production unless it's something that wouldn't fit into the category. You can just make a motion to compel - after you have tried to talk to the attorney about the documents you still need and they still don't send them. See my response.

Jay Bodzin

Jay Bodzin

Posted

I deeply respect Ms. Reisman as my professional superior, but I'm just not sure I agree in this case. Motions to compel can only be filed once a request has been made (formal or otherwise). I direct your attention to UTCR 5.010, which states that you must confer with the other side in good faith and attempt to resolve the dispute before filing motions to compel.

Joanne Reisman

Joanne Reisman

Posted

Jay - you didn't wait to read my response before responding - that's included. Still working on the response - please don't jump the gun.

Asker

Posted

I have contacted his lawyer indication which documents are missing and am perfectly will to send a request detailing the items. I already know he will not comply and I am fine with that, but I need to know how to file a motion to compel as no one, including stevens-ness seems to have heard of this form

Joanne Reisman

Joanne Reisman

Posted

See my response now posted.

Asker

Posted

Would it be easiest and most beneficial for me to copy his lawyer's request but change "Respondent" to "Petitioner" since there are no set forms available for this?

Posted

In the old days people that didn't have attorneys didn't know they had the right to ask for documents and get them. More and more people began to represent themselves and appear in domestic relations matter. In response to this the legislature passed ORS 107.089 and this form is handing to everyone that files a domestic relations matter so they can simple send it to the other side and will trigger a reciprocal mandate to exchange all documents on the list.

If you look at subsection 3 it talks about what to do if the documents are not sent as requested. You might not know how to do a formal motion to compel but essentially anything in writing filed with the court stating your attempts to get the documents from your opposing counsel and requesting a hearing on the matter should suffice. Before you file anything in the court you have to call the opposing counsel and talk to him about the documents and give him a chance to comply. You can also send letters if he won't return your calls and say when you called and what you want. When you ultimately file with the court to compel the production be sure to state what attempts you made to get the documents from opposing counsel.

The categories in ORS 107.089 are meant to be general and include all documents that fit the category. Sometimes this leaves things open to interpretation. So to close that gap when you contact opposing counsel about the documents you still want you need to refer to what you want a specifically as you can. Always follow up to a phone conversation with something in writing so there can be no doubt what you asked for if you later have to seek the court's assistance in compelling production. Your oral and written request will either be deemed to fall under the ORS 107.089 category that should have been produced or will be deemed to be a new request under the general rules of discovery that allow you to ask for anything that can lead to discoverable evidence - so either way you are covering your bases and will be able to ask the court to compel production if your demands aren't met. I don't think the court is going to be ultra picky with litigants that don't have attorneys as to how you write up the motion you send to the court - a letter format should work. The importance is to get your request to the court in writing, cite the case name and number, and be clear about what the problem is and what you want.

Of course it always helps to have an attorney if you can afford one, even if it's only for advice as to how to proceed.

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The comments by this author to questions posted on Avvo are designed to foster a general understanding of what might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.

Asker

Posted

Would it be easiest and most beneficial for me to copy his lawyer's request but change "Respondent" to "Petitioner" since there are no set forms available for this?

Joanne Reisman

Joanne Reisman

Posted

Sorry, I can't comment on a document that I can't see. As I stated - the most important thing is to do things in writing and properly identify the case and the parties at the top of the page. Even a letter format would work or you could try to use a pleading format if you think you can figure it out. The rules are that the court needs to overlook formal pleading rules in the interest of justice - so do the best you can or run it by an attorney.

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