Discovery in Family Law Part Two: Subpoenas and Additional Rules of Discovery

Discovery is a fundamental aspect of legal proceedings across various types of cases, and is used often in family law matters. In this post, we’ll delve into more specific information about the rules and processes used in interrogatories and production, focusing on their significance within family law cases.

This post serves as Part Two of our series on Discovery in Family Law, building upon the insights shared in Part One. If you missed it, you can find it here.

Why should I send out or respond to discovery requests?

Using discovery can also be beneficial because it will help you obtain and prepare for evidence and arguments that the other side may bring against you in your case if you don’t settle. If you do go to trial, you can compare if the answers given in the discovery responses match the responses made in trial. If they are not the same, you can use the other party’s answers provided in discovery to question their credibility or their memory of the facts of the case.

Can I prevent the other party from getting the information if I just don’t respond to their request?

Can I object to requests made in discovery?

Yes, if you have a valid reason for not answering a question on an interrogatory, or providing documents responding to the request for production, you may raise an objection. When objecting, it’s important to clearly state the objection in the documents and provide an explanation for your objection. There are several grounds for objection to a request:

1. Relevance: The question is not related or pertinent to the case.

2. Privilege: Communications between you and your lawyer, doctor, counselor, or domestic violence/sexual assault advocate are protected.

3. Not Within Your Possession or Control: You do not own or have access to what the other party is asking for.

4. Unduly burdensome or overly broad: The other party is requesting an excessive amount of information, or it would require an unreasonable amount of time and effort to provide a response.

Rules of Discovery

The Washington State has established Civil Rules regarding discovery that need to be followed when making discovery requests in a court case. The primary rule is Civil Rule 26, which establishes methods of obtaining discovery as well as limitations. The rule can be located here: https://www.courts.wa.gov/court_rules/pdf/CR/SUP_CR_26_00_00.pdf

Some of the important rules to note regarding the discovery process include:

CR 26(a) – This rule provides a list of various methods of obtaining discovery in any court case, as provided below:

CR 26(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

CR26(b)(1) – This rule provides limitations on what can be requested in discovery, as provided below:

CR 26(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The frequency or extent of use of the discovery methods set forth in section (a) shall be limited by the court if it determines that:

(A) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(C) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties, resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under section (c).

CR26(c) provides information on how to obtain a protective order if you want to protect information from being disclosed for a reasonable reason, as provided below:

CR26(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that the contents of a deposition not be disclosed or be disclosed only in a designated way;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

In addition to the Superior Court Civil Procedure rules, you should also look to the local court rules in the county the case is taking place in for any additional rules that apply in your case. These are generally available on the county court’s website or here (https://www.courts.wa.gov/court_rules/).

The specific rules for discovery that you should be familiar with if you are going through the discovery process are CR 26 through CR 37, which can be found here (https://www.courts.wa.gov/court_rules/?fa=court_rules.state&group=sup).

Common Documents Requested in Discovery

In the discovery process of family law cases, various documents are commonly requested to gather information and evidence relevant to the case. Some of the most common documents include:

1. Financial documents: These can include tax returns, bank statements, pay stubs, retirement account statements, investment account statements, mortgage documents, loan documents, and any other financial records that provide insight into the parties’ income, assets, debts, and financial obligations.

2. Employment records: These may include employment contracts, salary information, benefit statements, and any other relevant employment-related documents to assess income and earning capacity.

3. Medical records: This can include mental health and treatment records, substance abuse or domestic violence evaluations and treatment records, as well as other records documenting disability or other information relevant to the case.

4. Real estate documents: Deeds, property appraisals, mortgage documents, and rental agreements are often requested to determine property ownership, valuation, and any associated financial obligations.

5. Child-related documents: These can include school records, medical records, daycare expenses, extracurricular activity expenses, and any other documents related to the care and upbringing of the children involved in the case.

6. Communication records: Emails, text messages, social media communications, and other forms of electronic communication may be requested to gather evidence of communications between the parties or relevant third parties.

7. Documentation of expenses: Receipts, invoices, and other records of expenses such as medical expenses, child care expenses, and household expenses may be requested to assess the parties’ financial needs and obligations.

8. Legal documents: Previous court orders, agreements, and any other legal documents relevant to the case may be requested to understand the history of the parties’ legal proceedings and agreements.

These documents play a crucial role in the discovery process of family law cases, as they provide important information for evaluating the issues at hand, such as child custody, child support, spousal support, and division of assets and debts.

Deadlines and Compelling Discovery

So, what do you do when the 30-day deadline for response has elapsed without any reply? To ensure good faith, if the discovery remains unanswered, you must first initiate a “conference of counsel.” Simply put, this involves you and the other party or attorney having a call or other communication, in accordance with the rules. To initiate this negotiation, you can send the other party an email or letter requesting a meeting or inquiring if an extension is needed after the deadline. It’s important to retain a copy of this correspondence or other documentation as proof of your efforts to obtain responses.
If the other party still fails to provide the requested answers without valid reasons, you can proceed by filing a Motion to Compel. This motion seeks a court order requiring the other party to furnish the requested answers, in accordance with the Superior Court Civil Rule 37 located here (https://www.courts.wa.gov/court_rules/pdf/CR/SUP_CR_37_00_00.pdf).

Discovery Abuse

Discovery abuse in family law occurs when one party engages in tactics to hinder or obstruct the discovery process, preventing the requesting party from obtaining relevant information or evidence. Some examples of discovery abuse in family law cases include:

1. Failure to disclose financial information: One party may intentionally withhold or conceal financial documents such as bank statements, tax returns, or asset valuations, making it difficult for the other party to assess the full extent of the marital estate for purposes of property division or spousal support determination.

2. Delay tactics: A party may repeatedly request extensions of time to respond to discovery requests, causing unnecessary delays in the legal proceedings and increasing costs for the requesting party.

3. Overly burdensome requests: A party may flood the responding party with an excessive number of discovery requests, or request records that are costly to obtain or irrelevant information, making it time-consuming and costly for the responding party to comply.

4. Destruction of evidence: One party may intentionally destroy or alter relevant documents or electronic evidence, such as deleting emails or text messages, to prevent their disclosure during the discovery process.

Consequences of Discovery Abuse

Potential consequences of discovery abuse may include:

1. Court sanctions: Courts have the authority to impose sanctions (penalties or punishments imposed by a judicial officer on a party, attorney, or both) on parties who engage in discovery abuse, which can include monetary fines, payment of the other party’s attorney fees, or adverse (negative) evidentiary rulings.

2. Striking pleadings: The court may strike pleadings or defenses of the offending party, effectively ruling against them on certain issues or even dismissing their case entirely.

3. Contempt of court: Continued refusal to comply with discovery orders or engage in discovery abuse may result in a finding of contempt of court, which can lead to further sanctions, including fines or imprisonment.

4. Adverse inference: If a party is found to have intentionally destroyed or withheld evidence, the court may draw an adverse inference against them, meaning that the court will presume the missing evidence would have been unfavorable to that party’s case.

Overall, discovery abuse can significantly impact the fairness and efficiency of family law proceedings, and the courts take such misconduct seriously to ensure that parties have access to the information necessary for a just resolution of their case.

Final Thoughts