It is often the case in all litigation and particularly Family Law litigation that there may be a party that has potentially less than truthful as what documents, information, or evidence they may have to support their positions. It is common especially where financial disclosures are involved that a party to litigation may be “hiding” or failing to reveal or otherwise disclose all relevant information as well. This presents a strategic issue that must be considered as to whether it would be worthwhile to serve “Discovery” on that party to attempt to reveal the information believed to be being hidden or not fully disclosed.
Although each party is expected to comply with the full disclosure requirements found throughout the Family Code, the reality is that in practice, disclosures are often lacking intentionally and sometimes unintentionally and from time-to-time additional Discovery is required in order to resolve those issues related to the lack of disclosure. Importantly as well, Discovery also provides a further opportunity for the Parties to ascertain what evidence and documentation will be available leading up to trial which may impact any decision making towards settlement or moving forward with trial as well.
Discovery? What is that?
Generally, “Discovery” is a legal term referring to a fact-finding process that takes place after an action has been filed with the court and before the start of trial. Discovery requires the parties to disclose material facts and documents and allows the parties in the case to prepare for settlement or trial. These disclosures and responses to discovery are required to be “verified” meaning that the content and information produced therein are signed off on under penalty of perjury by the responding party to that discovery. The responding party has a specific timeframe in which to respond with verified responses in writing to the questions or requests for documents presented. These verified responses can then importantly be used as evidence for the purposes of negotiations and potentially later at trial as well.
Primary Discovery Methods:
There are three primary methods of conducting Discovery, which consist of (1) written interrogatories (written questions), specifically “Form Interrogatories” and “Special Interrogatories”, and a (2) demand for production of documents (“Request for Production of Documents”) and (3) Depositions (testimony under oath). All three can be used cumulatively or one or more of the three can be used to attempt to uncover whatever information or documentation is believed to have been hidden or not fully disclosed.
Either party can send interrogatories or document production requests to the other party to obtain relevant information. There are even specific interrogatories for Family Law cases which the Judicial Council has created known as “Form Interrogatories — Family Law”. Questions in the Family Form Interrogatories include questions about agreements between the parties, children’s special needs, support provided or received from third parties, separate property contentions, claims for reimbursements and information relating to attorney fees.
The more case specific and specialized version of interrogatories are “Special Interrogatories” which are questions specific the case and issues at hand, unlike the template “Form Interrogatories” which are very generalized. Special Interrogatories are most useful for direct questioning as to case specific issues and can be used in a more targeted manner than Form Interrogatories will allow for. Taking care to draft interrogatories that are likely to obtain the information needed in a manner that they are not subject to reasonably valid objections can be difficult but this is a very worthwhile method of obtaining information leading up to trial or attempting to pin a party to responding more directly on a specific issue or question under the penalty of perjury to be later used for evidentiary purposes at trial, further investigations and discovery, or in preparation of taking a deposition.
Demand for Inspection / Request for Production:
Another discovery method and one which is particularly useful in the context of financial disclosures in divorce proceedings is a Demand for Inspection and/or Request for Production of Documents. These types of discovery requests may be specifically useful and warrant serious consideration where a party controls a business in which the marital community has an interest, when one spouse had primary control over financial records during the marriage, or where you believe a Party to the litigation may be either hiding or failing to fully disclose relevant financial information.
Finally, and in my belief, one of the most useful and least utilized methods of Discovery in family law proceedings is taking the deposition of the adverse party, witnesses or experts. This may be hugely important if the case will likely go to trial, or you are having difficulty obtaining discovery through the written requests. Unlike written Discovery, the deponent’s attorney cannot help him/her with the answers. This form of Discovery is unfortunately, often the most expensive as you must pay for both a court reporter and the attorney – however a deposition can very much “make or break” a case and the expense is more often than not, worth it in my humble opinion.
The unfortunate reality in the context of Family Law cases is that Parties will often go to trial without having conducted discovery due to the cost concerns with conducting discovery. While these concerns are relevant in terms or monetary ability and means, best practice would be to never enter a trial without having conducted some, if not thorough, discovery beforehand. Trial without prior discovery amounts to some extent, to “going in blind” and can often lead to results that are less favorable or desirous than what may have potentially occurred had proper disco very been conducted in preparation of trial beforehand.
I strongly recommend from the outset of any proceeding to contemplate what discovery may be necessary and to plan to move forward with that discovery where possible. I would also strongly recommend contacting a licensed California Attorney to discuss the implications of discovery in any future or ongoing litigation you may anticipate. The benefits of discovery often outweigh the costs and generally lead to better case outcomes, and it is in your interest to strongly consider discovery as party of any litigation plan you may be contemplating.
A Brief & Quick Note on Subpoenas:
A subpoena is a court order that requires a party (or a witness who is not a party) to come to court to testify. It can also require the person to bring certain papers to the court hearing or trial. You may subpoena the other party or a non-party witness to the hearing if: He or she is a California resident. A Subpoena is different from standard discovery in a few ways, most immediately relevant is that a subpoena requires the court to sign off on it and its response by the responding party to the information requested is court ordered. This is different from the other discovery methods addressed herein.
Furthermore, the Court may deny a subpoena that is overly broad or not specifically targeted among a variety of reasons the Court may object to signing off on a subpoena. The more detailed and specific your subpoena may be increases the likelihood that the Court will agree to its issuance. After you’ve made it past that initial hurdle, the more difficult part of obtaining your response will begin depending on who or what is being subpoenaed.
The most often request I receive regarding subpoenas is to subpoena bank or phone records. This is a very normal and reasonable request in the context of many Family Law proceedings. In practical terms though, these can be very difficult subpoenas to obtain timely responses too. The major banks or major phone companies are simply in no rush to produce any documents with or without a court order and the threat of violating an order and being sanctioned by the Court for a refusal to respond or having provided an unduly delayed response has no real teeth for those entities. This often results in their being further delays from the date of issuance of the subpoena related to wrangling a response from the corporate entity that has received the subpoena.
This is not to say that information cannot be obtained, but the purpose is to caution any prospective Party that may think that once a subpoena has been sent, that information will be reasonably returned in full – this is generally not the case. I would plan for any subpoena to take anywhere from 90-120 days to turn around for example if it’s being directed towards a major phone company or banking entity. This is somewhat similar as well for subpoenas to government agencies such as the Franchise Tax Board or “FTB”.
I would also caution that the information or response received may not be what had been hoped for as many entities have set up automatic purges of their information storage, very short retention timelines for the information and documents they do save, and sometimes even outsource storage of that information to third-party-entities further complicating obtaining a response.