6 Civil Discovery

• Library: Asset Forfeiture: Practice and Procedure in State and Federal Courts (ABA) (2014 Ed.)

6 Civil Discovery

A. Introduction

One of the alluring aspects of a civil forfeiture action is the availability of civil discovery. Com. v. Nine Hundred and Ninety-Two Dollars, 383 Mass. 764; 422 N.E.2d 767, 775-76 (Mass. 1981); State v. Rodriguez, 130 N.J. Super. 57; 324 A.2d 911, 914 (N.J. Super. A.D. 1974); State v. One 1973 Cadillac, 95 Wis.2d 641; 291 N.W.2d 626, 644 (Wis. App. 1980); State v. $19,238.00 in U.S. Currency, 157 Ariz. 178; 755 P.2d 1 166, 1 169 (Ariz. App. 1987).

It may also be the most dangerous because many criminal prosecutors and defense attorneys generally are not well acquainted with civil discovery and motion practice. That conundrum was articulated by a California appellate court with this counsel: "Like the thorns that accompany the rose, however, the application of civil procedure rules to forfeiture proceedings carries with it the spectre of discovery battles, depositions, and demurrers.... [P]rosecutors' offices should be aware that the forfeiture statutes open up a veritable Pandora's box of discovery, in which their investigators, their confidential informants, and their very files may be fair game." See People v. 25651 Minoa Drive, 2 Cal. App. 4th 787, 791 (1992).With that judicial advisory we will now review civil discovery as it relates to civil asset forfeiture actions.

B. Civil Discovery Overview

The purpose of civil discovery is to determine all legal and factual issues that are part of the litigation, including:

1) Standing of the claimant to contest the forfeiture;
2) Identifying all affirmative defenses;
3) Evaluating probable cause for the seizure;
4) Determining legal theories for the initiation of the forfeiture proceedings;
5) Reviewing all evidence that the proponent contends establishes the necessary burden of proof on any issue he or she is required to meet to either prevail or defeat the forfeiture action; and
6) Gathering evidence to respond and defend against a summary judgment motion. United States v. $28,000.00 in U.S. Currency, 2012 WL 4402503, *2 (M.D. Ga. 2012).

If the parties fail to comply with the discovery demands, sanctions may be imposed for noncompliance, including the dismissal of the action. Once civil discovery is complete, the parties will be in a position to bring a summary judgment motion, enter settlement discussions, or set the matter for trial.

In federal and state forfeiture practice, the general rules of civil procedure apply unless they are inconsistent with the forfeiture statute. United States v. $50,800.00 in U.S. Currency, 2011 WL 2434225, *2 (D. Ariz. 2011); Jauregi v. Superior Court, 72 Cal. App. 4th 931, 938 (1999); People v. Cory, 183 Colo. 1; 514 P.2d 310, 311 (Colo. 1973); Com. v. $8,006.00 U.S. Currency, 166 Pa. Cmwlth. 251; 646 A.2d 621, 624 (Pa. Cmwlth. 1994). For ease of discussion, we will use the statutory references in the Federal Rules of Civil Procedure.

Any matter that is relevant and not privileged that appears reasonably calculated to lead to the discovery of admissible evidence is discoverable. See Fed. R. Civ. P. 26(b)(1). There are various methods of discovery found in the federal civil code (see Rules 26 through 37), but the tools that are most helpful in the civil forfeiture context are interrogatories, request for production of documents, depositions, and request for admissions. Each will be examined and discussed separately.

C. Interrogatories

Interrogatories are written questions directed to a party that must be answered in writing under oath within a prescribed period of time. See Fed. R. Civ. P. 33. To avoid discovery abuse, most codes limit the number of interrogatories that may be propounded, see Fed. R. Civ. P. 33(a) (not exceeding 25); Cal. Code of Civil Procedure § 2030.030(a)(1) ( limit of 35), but that number may be increased with leave of court. See Fed. R. Civ. P. 33(a). Some states also provide for official form interrogatories that request basic civil case background information, which are not counted in the special interrogatory limit. See Cal. Code of Civil Procedure §§ 2033.710; 2030.030(a)(2). In these jurisdictions, litigators will want to use the form interrogatories to obtain general case information and draft specially prepared interrogatories for specific information pertaining to the forfeiture action.

Some state jurisdictions permit the interrogatories to be served along with the complaint for forfeiture, requiring the claimant to file an answer to the complaint and responses to the interrogatories at the same time. See Ariz. Rev. Stat. Ann. § 13-4311.H. This is especially helpful in those jurisdictions that permit expedited probable cause hearings so the prosecutor will have relevant discovery information prior to the hearing. See Chapter 5, Section J.

Federal practice formerly permitted the service of interrogatories with the complaint, see Supplemental Rule C(6)(c), but that provision was eliminated with the enactment of Supplemental Rule G effective December 1, 2006. However, the new rules created a discovery tool called Special Interrogatories. Supplemental Rule G(6). After a claim is filed, the government may serve special interrogatories limited to the claimant's identity and relationship to the defendant property. Supplemental Rule G(6)(a). Answers or objections to these interrogatories must be filed within 21 days of service. Supplemental Rule G(6)(b).

The special interrogatories serve two important purposes. First, they are designed to garner evidence concerning the claimant's standing to contest the forfeiture. United States v. $14,800.00 in U.S. Currency, 2012 WL 4521371, *5 (D. Md. 2012). Depending upon the responses received, the government may file a motion contesting the claimant's standing. See Chapter 5, Section C. Second, if a claimant files a motion to dismiss under Fed. R. Civ. P. 12(b), see Chapter 5, Section L, the government may serve special interrogatories within 21 days of service of the motion, Supplemental Rule G(6)(a), and defer responding to the motion until 21 days after the claimant has answered the interrogatories. Supplemental Rule G(6)(c); United States v. Approximately $658,830.00 in U.S. Currency, 2011 WL 5241311, *3 (E.D. Cal. 2011). The Special Interrogatories under Supplemental Rule G(6) are available only to the government.

Responses must be signed by the party making the responses, and if there are any objections to the interrogatories, by the attorney making them. See Fed. R. Civ. P. 33(b). When interrogatories are served on the government, they must be signed and verified by an officer or agent for the agency. See Fed. R. Civ. P. 33(a). This will generally be an agent for the law enforcement agency that conducted the underlying criminal and forfeiture investigation.

Failure to respond timely may have deleterious consequences, such as waiver of any objections to the interrogatories, or privileges, see Cal. Code of Civil Procedure § 2030.290(a), and failure to comply with court orders mandating compliance may lead to the imposition of monetary and other types of sanctions. See Cal. Code of Civil Procedure § 2023.030; Com. v. $8,006.00 U.S. Currency, 166 Pa. Cmwlth. 251; 646 A.2d 621, 625 (Pa. Cmwlth. 1994).

If the response to an interrogatory requires a compilation, abstract, or summary of business records in possession of the agency, the code may provide for the responding party to permit the requesting party to inspect and make copies of the records. See Fed. R. Civ. P. 33(d). This is useful where law enforcement agencies would prefer to provide the official police reports that are responsive to the interrogatory request in lieu of preparing summaries of the reports. See Cal. Code of Civil Procedure § 2030.230.

The pleadings in the case should guide the questions that are contained in the interrogatories. Prosecutors should carefully examine the filed claim and formulate questions relating to the interest of the party in the claimed property, where and when it was acquired, from whom it was obtained, the nature of the transaction, and identification of any documents that verify the transaction. This may lead to a subsequent discovery request for production of these documents. Questions pertaining to claims of innocent ownership should also be included in the first set of interrogatories. A prosecutor should probably have a predesigned set of interrogatories to serve in civil asset forfeiture cases to cover basic information to evaluate the...