1. Discovery in TPR Cases and of DFS Records in Other Contexts
Wendy S. Ross, Esq., Senior Assistant Attorney General
CJP Blog Talk May 9, 2019

2. TPRs are Civil Cases
The Wyoming Rules of Civil Procedure apply to termination of parental rights cases
Wyo. Stat. Ann. §
Discovery demands are not appropriate – needs to be a request under the WRCP

3. WRCP Rule 26 Initial Disclosures
Rule 26 specifically exempts Title 14 actions from initial disclosure requirements
Because TPRs are brought under Title 14, there are no initial disclosure requirements for any party in a TPR case

4. Interrogatories Limit of 25 questions, including discrete subparts
If the Department receives a request with more than 25 questions, the Department will object to answering any question above the limit
Must be answered within 30 days
By the party to whom they are directed
In writing, under oath

5. Interrogatories Objections
Must be timely and specifically stated or they are waived
Must be signed by the attorney making the objections

6. Request for Production of Documents
RFPs are an appropriate tool to request production of the Department’s file in a TPR case
The Department will produce the file with appropriate redaction in response to an appropriate request
The Department will produce records in its possession, but may object to producing documents not in its possession if those documents are easily available to Respondent (i.e., Respondent’s records)
No limit to how many a party can ask

7. Request for Production of Documents
Must be answered in 30 days
In writing
Responses must be signed by attorney of record, or the party if the party is unrepresented
WRCP 26(g)(1)

8. Requests for Admissions
No limit to how many a party may ask
Must be answered in writing within 30 days
If not answered timely, they are deemed admitted
Must be signed by attorney of record or party
Request to admit genuineness of document
Must be accompanied by a copy of the document

9. Depositions Leave of court generally not required
DFS may object on basis that cost is not reasonable
If you are requesting more than 10 depositions, leave of court is required

10. Discovery Sanctions
WRCP Rule 37 requires a good faith attempt to procure discovery responses before asking for court intervention
Court is authorized to order sanctions for parties who violate a court order regarding discovery
Including holding a Respondent in contempt of court and entering default

11. Protective Orders
A party may ask the court for a protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense
WRCP 26(c)
A motion for a protective order must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action

12. Duty to Supplement Discovery Responses
Parties have an ongoing duty to supplement discovery responses in a timely manner
Sanctions may be imposed for failure to properly supplement discovery responses

13. Pretrial Disclosures
Parties are required to disclose anticipated witnesses, including contact information, and anticipated exhibits at least 30 days before a trial (unless otherwise ordered by the court)
Certain objections must be made within 14 days of disclosure (unless otherwise ordered by the court)

14. Pretrial Disclosures: Experts
Parties must disclose anticipated expert witness testimony at least 90 days before trial (unless otherwise ordered by the court)
The Department most often uses non-retained experts (treating providers)
Disclosure requirements are different than using a retained expert
Pay close attention to scheduling orders and language of WRCP Rule 26(a)(2)

15. Discovery of DFS Records in Other Contexts
Confidentiality provisions for different types of records
CPS:
APS:
CHINS:
Delinquency: (g)
Juvenile probation:
Benefits: and (d)
Child support: 45 CFR

16. Subpoenas in Criminal Cases
Testimony
Typically, the Department does not file motions to quash for testimony in criminal cases
Instead, the DFS worker will raise the issue of confidentiality on the stand when questioned about the confidential information
If the court orders the worker to answer, that is a court order sufficient to protect the Department’s concerns
The analysis for the Department will depend on what type of information is sought

17. Subpoenas in Criminal Cases
State v. Hathaway, 2017 WY 92
To even get an in camera review by the court, the Defendant must show:
The information sought is specific
Subpoena must ask for specific documents or types of documents
The information sought is constitutionally material
Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.

18. Subpoenas in Civil Cases
Wyo. Stat. Ann. § (h) requires that a court find good cause to release information from child abuse/neglect records in civil cases

19. Requests for Information without Subpoena
Certain persons may request access to certain DFS records through a field office’s district manager
SS-31
APS-31
But requests have to be for a specific purpose consistent with statute
Manager decides whether to grant request for information

20. DFS Information/Records Tip
If you are wanting DFS records for use in a civil or criminal case, the AG’s office is willing to help evaluate your request, including accepting service of a subpoena…just get in touch with us