Senate Bill 741 will prohibit discovery pursuant to the civil discovery act for purposes of the Domestic Violence Prevention Act (“DVPA”) except when a Court grants a request for discovery upon showing of good cause by the party making the request. The Court must consider the least intrusive manner of discovery that is available. When looking to the “least intrusive manner” the court looks to multiple factors: (1) Importance, relevance, and the need for the information sought; (2) Likelihood the information can be acquired by other discovery means; (3) Delay in completion of the hearing due to discovery; and (4) The potential for trauma for any person involved.
The creation and the idea behind this Senate Bill stem from the issues that Domestic Violence Survivors who enter family Court and are seeking protection against their abusers often face ongoing abuse via the legal system. To combat that, this Senate bill was created to limit further litigation harassment and harassment via discovery. However, the legal and cost effects of this can be quite severe.
Although, I am very much a supporter of protecting victims from further forms of abuse of any kind, this will hinder not only the abuser’s ability to propound discovery, but the victims as well. Before we get into the effects this will have on both parties and the legal case at hand, we must define discovery in its most basic form.
Discovery is the legal term for a formal request of information and/or documents from the other party to use as evidence to support your argument at a hearing or trial. There are multiple forms of discovery that can be propounded on an Opposing Party or in simpler terms, there are multiple forms of discovery that can be used to request certain types of information. The most common types that are used in family law are: (1) Form Interrogatories; (2) Request for Production of documents and/or things; (3) Special Interrogatories; and (4) Subpoenas.
- Form Interrogatories – These are the simplest form of discovery in California Family Law Cases. This document is a pre-printed questionnaire that covers subjects like income, debt, community and separate property, alleged agreements, and reimbursement issues.
- Request for Production of Documents and/or Things – These are legal techniques that allow us to obtain documents regarding relevant issues of this case. Most often used for Bank Statements, Financial Documents, Income Documents, Expert Reports, CWS Reports, etc.
- Special Interrogatories – These are written questions directed to Opposing Party pertaining to the case that Opposing Party must answer under oath. These questions can be as specific as needed and the answers can be used as evidence in a trial. The questions are centered around the issues in your specific case; in this scenario, in a Domestic Violence Action they would be centered around allegations of abuse, claimed defenses, any experts Opposing Party may have, and any documents which can be used to corroborate allegations and defenses.
- Subpoenas – These are requests for documents that are sent to third parties other than Opposing Party. They are useful to obtain records when the Opposing Party would not have them to produce or if we think Opposing Party will intentionally keep the documents from us if asked to produce.
With Senate Bill 741, the above-mentioned techniques we call discovery will be limited. Generally, once a case is started and evidence is required for a hearing or a trial, we are allowed to draft and send out discovery with no permission needed from the Court. Now, with the introduction of this upcoming Senate Bill into law, for Domestic Violence Restraining Order Hearings, we will have to add additional steps to be granted “permission” for discovery. This will now likely require a Request for Order (“RFO”) and an Ex Parte requesting an Order to shorten time. Rather than just jumping into discovery to prove abuse allegations or request financial documents if support of any type is also at issue in the DVTRO Hearing, we will need to draft a Request for Order requesting approval from the Court. In that RFO we will need to provide the Court with the information on what exactly we are requesting in discovery, why this is important and vital to our case at hand, what type of discovery we wish to draft, why that is the least intrusive option, how it will delay the DVTRO hearing, and if it will likely cause further trauma on any party to the case. With that RFO, due to the impacted nature of the Court, we will also have to likely file an Ex Parte meaning an emergency hearing to request the Court hear our RFO for discovery much sooner than scheduled, as to not further delay the DV hearing.
All in all, only time will tell how this Senate Bill 741 actually works and applies to every day trials and hearings, but looking at as written, appears to make it harder for the victim to obtain the information needed to actually acquire a permanent restraining order and seems to me that it will only further the harassment via litigation and really only further assists and protects the claimed abuser from a restraining order, but again only time will tell how this looks in real life.