Many members of the public are familiar with a part of family law called “Discovery”. These are rights to obtain information and records from the opposing party, which may be used as evidence in hearings and trials. These rights solidified over a period of many years during the 19th and 20th Century and were codified in the Discovery Act of 1964, based largely on the Federal Rules of Discovery. This Act has been amended many times since then, and can be found in California Code of Civil Procedure (“CCP”) §§2016.010-2036.050. While this may sound like a rather dry topic, Discovery is the chief means by which spouses, especially those who have not been privy to the significant details of financial assets and transactions during the course of their marriage, can attempt to discover the complete picture.
Perhaps the most critical juncture of Discovery occurs prior to either party filing a Petition for Dissolution of Marriage. Actually, it is wise for a potential divorcé(ée) to start thinking and planning the process for obtaining the necessary family financial records weeks or even months before the commencement of litigation. As any experienced family law attorney will assure you, it is far easier and inexpensive to get ahold of bank, investment, and retirement account statements, tax returns, and property ownership papers, before hostilities develop (even in situations clothed in the guise of “amicable separation”) than afterward.
Your rights of Discovery take the form of several investigative procedures available in all marital dissolution cases. The procedures include: *
1) Obtaining Testimony and Records of Non-Parties (CCP §§2020.010-2020.510;
2) Taking Depositions of the Parties (CCP §§2025.010-2025.620);
3) Written Interrogatories to the Parties (CCP §2030.010-2030.410);
4) Inspection and Copying of Documents, and Personal and Real Property (CCP §§2031.010-2031.510);
5) Physical and Mental Examination of Parties (CCP §2032.010-2032.650);
6) Requests for Admissions by Parties (CCP §§2033.010-2033.740);
7) Exchange of Expert Witness Information (CCP §§2034.010-2034.730). **
*These are the most frequently used and useful methods of investigation and securing evidence for trial. However, various other procedures are available for special situations not covered by the means listed above.
**One other litigation tool, though not part of classical discovery, is the Vocational Evaluation. This is used in connection with disputes over spousal support. It assists the court to determine the ability of the spouse seeking support to obtain gainful employment, thus reducing the need for payment of support. Family Code §4331.
Though it may not be apparent from merely reviewing the Discovery options listed above, they sometimes require substantial amounts of your lawyer’s time to prepare and complete. This brings us back to the point that whatever information and records you can obtain before filing or commencing actual litigation, the more you save in legal fees and frustration. In other words, consulting experienced family law counsel before taking any formal steps toward divorce will pay handsome dividends.
Here is how these Discovery tools are applied to family law matters:
(No. 1) Deposition subpoenas command production at your attorney’s office of physical evidence held by third parties, such as banks, employers, doctors, etc. Production Demands must observe standards of clarity and compliance. Responses to Production Demands must be written and under oath. Deposition Subpoenas are also used to obtain necessary testimony from witnesses and others who possess evidentiary knowledge but are not parties to the case.
(No. 2) Depositions of the parties take place quite frequently in family law litigation, often after the first set of Interrogatories and Demands for Production have been served. They are effective in getting a better idea of what facts the other spouse knows, how good a witness he/she will make, and inconsistent or false claims they are asserting. Similar motions to compel are available in connection with Demands for Production of Documents can be used to obtain cooperation from the opposing party and third party Deponents.
(No. 3) Interrogatories ask factual questions to the other spouse. Direct relevance isn’t required. Interrogatories must be clear, complete, self-contained, and can’t be compound, conjunctive, or have sub-parts. Contention interrogatories are useful as the case approaches trial. They ask the other spouse to say exactly what they want, and what facts and evidence support their claims. As with other discovery forms, sand-bagging with answers can result in sanctions being imposed pursuant to a motion to compel.
(No. 4) Demands for Production of Documents allows parties to obtain documents or categories of documents in the possession or control of the other party. They also allow a party to inspect “things” such as personal and real property (including photograph and other means of preserving the appearance and condition of valuable documents, art, vehicles, land, etc. Full compliance by the opposing side can be compelled by motion, and includes reimbursement of reasonable attorney’s fees and costs.
(No. 5) Demands for Physical or Mental Examinations often appear in family law cases over child custody disputes and questions about the validity and limitations (in the context of ability to care for children and/or work in gainful employment) imposed by physical or medical problems.
(No. 6) Requests for Admissions (“RFA”) are similar to Interrogatories (No. 3) in that they must be stated very clearly and precisely. Also, they are usually served close to the trial, to tie the opposition to specific or narrower positions.
(No. 7) Exchanges of Expert Witness Information take place later in the case. These are necessary when the parties dispute the value of significant assets, employability of a spouse, validity and extent of medical conditions, and serious issues impacting appropriate custody and visitation structures for the parties’ children.
Mentioned at the outset and now made even clearer by the above descriptions, Discovery is a critical part of family law matters. Like all marital dissolutions, paternity cases, and other domestic disputes, resolving them without formal litigation is the best course for the parties from both a financial and emotional point of view. However, where serious differences mandate concerted formal legal action, the parties have a veritable arsenal of investigative and tactical weapons at their disposal.