Have you heard that you could gather “discovery” in a court case? In the legal realm, this term is often heard in movies, our favorite crime shows, or during a court case. But what is discovery? What does it entail? We are here to demystify what discovery means to the court, to the parties involved, and how to use it to your advantage in your court case.

How do you get the answers and information you need in your legal case?

By using discovery tools and techniques. Discovery is the catch-all term describing the information gathering process in a legal case. Information may be gathered by a number of methods. For this blog, we will discuss only written discovery requests as they generally apply in family law cases.

What is Discovery?

Discovery is the process of gathering information to prepare for court. Most of this process takes place outside of the courtroom and between the parties. Different methods for gathering information, documents, and admissions are utilized to get information from the other party/parties, businesses, and any other persons with information related to a case before you go to trial.

How can I gather information that only the other party knows or has in their possession?

You can gather information from the other party or parties in your case a number of ways. Specifically, written requests for discovery from the other party/parties can be completed in three different ways.

Requests for Interrogatories

A document including a list of questions (interrogatories), which a party or parties in a case must answer and provide written responses to, sent by the requesting party. Interrogatory requests can be made to obtain any discoverable, relevant information to your case. Questions may include information about the party’s finances, real property, personal belongings, etc. For divorce and child support cases, most relevant questions help to determine all the assets and debts of the marriage and incomes of the parties to determine an equitable split of the community property and reasonable spousal and child support amounts for transfer payments. For parenting plan cases, questions about your living situation, roommates, work schedule, mental health concerns, criminal history, substance abuse treatment, etc., may all be relevant to the establishment of a parenting plan. The party receiving the request must answer each question in writing and under oath, as the document requires your swear you are telling the truth when answering the requests to the best of your knowledge and ability.

Requests for Production

A document providing a list of tangible items like documents, photos, recordings, etc., to be provided (produced) to the other party. This can include any documentation relevant to your case. Specific documents often requested are financial records (pay stubs, tax returns, W-2s, bank records, etc.), health records (including medical reports, evaluations, treatment records, etc.), and any evidence you intend to provide to court in your case. Documents requested may also include electronically stored information like emails, text messages, social media postings, and video or other recordings.

Requests for Admission

A documented list of direct questions requiring a yes or no response, relevant to some issue(s) in a case. A party may request another party either admit or deny statements about their case. The admissions are made under oath and must be answered truthfully. Requests for admissions are often used to simplify issues for trial. Requests relevant to a family law matter may include admitting or denying if there is a history of physical abuse, transfer of funds, if any treatment or drug testing has been done in the past, and much more.

I received a 50-page document from the attorney representing my spouse. It is asking me questions about my personal life and finances and requesting my paystubs and tax returns. What should I do?

You likely received one of the discovery requests listed above. Requests for Interrogatories in conjunction with Requests for Production are the most common discovery tools used in family law cases. You are required to provide your responses within 30 days after receipt of the request. If you have any legal objections to the questions or records requested, you must provide your objections within 30 days of receipt of the request as well to be valid. You have a legal obligation to respond to the questions and provide the documents requested so long as they are relevant and not protected from disclosure under the law.

According to Superior Court Rule 26(b)(1):

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.

Under this broad description of what is “discoverable” information, the important point is that the requests have to be “relevant to the subject matter involved in the pending action…”or “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

For example, the discovery request asks for your current employer’s information and recent pay stubs. In most situations these requests would be relevant. Information about your work history, current pay stubs from your employment, and asking for your last 2 years of tax returns are all reasonable requests to make when your case subject matter involves financial issues like determining spousal support, child support, and requests for attorney fees.

As a different example, if a request is made in your divorce case for all your grade reports and course lists from high school, it is less likely to be relevant to your case. Unless those records somehow relate to a relevant issue or material fact in your divorce case (such as if you attended high school or obtained special training, etc.), it is unlikely that that information would be considered relevant in your divorce.

There are other reasons you may not have to respond or provide documents, but it is important that you know those specific circumstances apply (allowable legal objections, such as privileged communication, etc.). You should not just refuse to answer or provide a response, as the court can sanction you if you fail to respond unreasonably. If you need more time to complete your response, it is common to request additional time from the other party to allow you to provide full and complete responses.

What happens if I don’t respond to the written discovery request?

The court can compel (order) a party to a case to answer your discovery demands or be sanctioned if they fail to do so. Superior Court Rule 37 applies when you fail to comply with the discovery requests. Upon a motion filed with the court by the requesting party (the party who sent the discovery requests), the court can sanction the not complying party (responding party to discovery request) in a variety of ways. This can include a court order compelling the party to answer the requests, or even limiting testimony at trial for the non-complying party. The court can impose financial sanctions as well, such as an award for attorney fees for the party seeking discovery responses.

What if there are questions I don’t want to answer for my safety, or I am afraid will be used to hurt me?

There are situations where it may be appropriate to request a protective order to prevent you from answering certain private or personal questions, or provide information that would potentially harm or embarrass you. In those situations, it would be important to file a request for a protective order to prevent you from having to disclose or provide information of a sensitive nature or to protect your safety. Superior Court Rule 26(c) provides information about 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…

If you believe that one of the reasons listed above apply to prevent you from providing the information requested, filing a motion for a protective order is the best way to protect yourself and letting the court make a determination on if the information needs to be provided or not.

Do I have to disclose my medical records?

Sometimes. If the records are relevant to your case, the court may order you to produce your medical records. Some situations where they would be relevant include:

  • a. In your claim that you are disabled or incapable of work, when child support is sought. The court has to make a determination of what amount of income a party is able to make to determine child support. So if you have records showing your disability determination from a medical professional, it may be required to make sure any child support determinations are fair.
  • b. There is a history of drug or alcohol abuse and a parenting plan is being established. Substance abuse issues are a common concern in parenting and divorce cases when determination of a safe and stable parenting plan for children is at issue. If there has been any treatment done, drug testing completed, or other issues related to the safety of the children, those records may be required by the court.
  • c. A mental health evaluation is ordered by the court or risk assessment is done and showing compliance with treatment recommendations or therapy is required. In some situations, the information obtained in your treatment may remain confidential, but the court may require confirmation that you are attending treatment or therapy if the court has ordered it. It may be up to the court to decide what or how much information needs to be provided.

These are just a few examples for consideration. There are numerous situations in family law cases where the records may be ordered to be produced by the court. If you have concerns, you should file a motion with court to seek a protective order to see if the records have to be produced or can be limited to protect your privacy.

Final Thoughts

Written requests for discovery are usually the first steps in information gathering. There are additional methods of discovery used in a court case, which can include other tools such as subpoenas, depositions, and inspection/evaluation orders that allow parties to learn and obtain relevant information in advance of trial. It is important to know what you need to provide and when you can obtain a protective order to avoid embarrassment, harassment, or protect yourself from any safety concerns. In order to be best informed of your rights, it is always important to talk to an attorney to make sure you do the right thing and get the best results in court.

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Disclaimer

Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.