Understanding Discovery in Divorce Part 1 – Issuing Discovery and Evaluating Your Needs
Discovery is a general term family law attorneys use for the process of obtaining documents and information from the other party in your case.
Why do discovery? This depends on your case. If you and your spouse were completely transparent with each other during your case and you both know the finances very well, then discovery will likely not be substantial. However, if you are unsure of the finances, or your spouse maintains separate finances, or you suspect your spouse is hiding something, then it is likely you will need to use discovery to learn more about the circumstances of your case before resolving it.
While discovery is most often financial in nature, it can also be used to glean certain information if you suspect your spouse has been involved in activities which could affect your case and about which you want more information. This could be something as simple as selling off assets without your knowledge or something more serious such as a breach of fiduciary duty or domestic violence. Relevance is the key to discovery in Family Law cases and for the most part, if it is relevant to your case, it is discoverable.
Generally, there are two types of discovery – formal and informal.
Informal discovery simply means requesting specific documents from the other party via informal means, such as an e-mail or letter. Typically this only works in cases where the parties are working amicably together to resolve the case. In order to be successful with informal discovery, you need a party and attorney on the other side who are cooperative.
Formal discovery takes many forms, and is a request that comes with a legal obligation to respond in a formal and specific way, most of the time under penalty of perjury.
Forms of formal discovery include, but are not limited to, Demands for production and inspection of documents, Specially-Prepared Interrogatories, Requests For Admission for Truth of Fact or Genuineness of Documents, Form Interrogatories, depositions, and subpoenas.
Demands for Production and Inspection of Documents are probably the most common type of discovery sued in divorce cases. These are used to demand the other party provide documents for your review. The documents must be things they have, or can easily get, which are relevant to the case. This can include bank statements, retirement account documents, real estate documents, deeds, trust documents, credit card statements, loan information, cryptocurrency information, business records, and tax returns to name a few.
Specially-Prepared Interrogatories are formal questions you can use to learn about what documents might be available and gain more information about situations relevant to your case. Through these you can ask a person to describe an event, person, place, or asset. You can also ask them to identify documents which are related to the event, person, place, or asset you asked about. You can also use this method to have the person identify any people with knowledge of the things you’re inquiring about, which is a great way to identify potential witnesses for litigation in your case.
Requests for Admission are generally used to establish whether the other party did or did not do a particular act, or whether a fact is true or not. However, it can also be used to confirm the authenticity of a document in preparation for litigation.
Form Interrogatories come in different forms created by the California Judicial Council. These are considered to be “objection-proof” (see Part 2 – Responding to Discovery – to learn more about objections). These are there to establish baseline information for your case and are considered merely a jumping off point for discovery. If you are a party who has very clear knowledge of all aspects of your case, then a set of Family Law Form Interrogatories may be all you need to move on to a resolution of your case. If you are one of the many people who need more information, then Form Interrogatories will only be a part of your greater discovery plan.
Subpoenas can be used to obtain information from third parties. There are multiple types of subpoenas, but for this particular blog post we are focusing on Deposition Subpoenas for Production of Business Records, often called a Subpoena Duces Tecum. Because they involve third parties and a person required to receive/supervise the information – called a deposition officer – document subpoenas can be costly. It is generally best to start with formal discovery first. In order to issue subpoenas, you need to know which third parties to target with your inquiries. A subpoena is a formal demand for information with a legally binding obligation to reply. It can only be issued by an attorney, or by the clerk of the court on behalf of a self-represented litigant. If you know which businesses and third parties have the documents you are seeking, then you have the information necessary for a subpoena, provided the person or business can be served in California. If you are seeking something that exists entirely outside California, then you will need to contact a company who processes subpoenas in the area you seek to obtain records.
Depositions give you the opportunity to have your attorney question the other party or their expert witness about your case. This is an excellent way to obtain information that you were unable to get through other methods. It also gives you a preview of what testimony will be like at trial.
It will be up to you and your attorney to craft a discovery plan in your case based upon your needs and knowledge of the other party.
What if the other party does not cooperate? Formal discovery comes with a concrete legal obligation to answer truthfully and in good faith. If the other party in your case refuses to respond, then you can file a motion to compel their compliance. If you are successful with your motion, then the court can also order the non-complying party to pay your attorney’s fees for the motion as a sanction for their bad faith behavior.
What can’t you do with discovery? You cannot use discovery to harass the other party by forcing them to produce documents you do not need. You also cannot force them to provide you documents you already have access to. You also cannot use discovery to make them admit to wrongdoings or describe events that are not relevant to your case.
If you need help drafting discovery, contact a local attorney in your area. Hepner & Pagan, LLP has extensive discovery experience in Family Law cases and can be contacted at 408-429-8336.