The Discovery Process
Lawsuits, including divorces, involve a clash of different perspectives and different sets of goals. Lawyers are hired to advocate for one side. That one side, the client, is the source of much of the information the lawyer has to work with. Each lawyer generally needs more information than their client can provide for many reasons, including:
sometimes the client has limited information
sometimes the client’s information is wrong, even through no fault of the client
the other side often knows things that the client doesn’t know
third parties may have information that would be valuable for the case.
In virtually every type of lawsuit, at least one side is required to make disclosures of their evidence to the other side. However, most attorneys do not make the required disclosures because they are afraid.
Fortunately, each side is able to obtain information from the other side and from third parties. This is called the discovery process. The purpose of discovery is so that each side has knowledge of all the relevant facts before trial. Knowing all the facts encourages settlement and reduces the risk of surprise at trial.
This is an overview of some of the types of discovery.
Written Discovery
Each side can ask the other side to answer questions. The answers will be under oath, so they have the weight and value of sworn statements. When one side receives these requests, they are required to respond to the requests within 30 days. There can be severe penalties for not answering within the 30 day time period, unless good cause can be shown for a delay.
There are three types of written discovery questions:
Each side can ask the other to admit (or deny) facts. If used properly, requests to admit can be a very valuable tool. Requests to admit can be very general as a set-up or foundation for more specific questions later on. For example, a request to admit could be as simple as, “You have had the use of a mobile phone for the last 4 years.” This request could have value as part of a set-up to establish the authenticity of text messages as evidence later on. Requests may be more focused and pointed: "You flew out of the state on the morning of May 4, 2021." Common errors that lawyers make when using requests to admit are when they try to win the entire case with a request for admission like “Admit it is in the children’s best interests for you not to have custody.” No one admits those conclusory types of requests, and judges do not enforce those types of requests.
Interrogatories are more open-ended questions. Each side can use interrogatories to ask the other side to list their witnesses. Each side can ask questions using interrogatories about the other side’s evidence, about their mental health, and about their claims in the lawsuit. The law permits each side to use interrogatories to force the other side to disclose the identities and contact information for all of their witnesses.
Each side can require the other side to physically produce documents and evidence for viewing and inspection. Requests for production cover a wide range of potential information, including bank records, medical records, and communication records. When information is requested, the responding party has a duty to seek and obtain information responsive to the request. In other words, if one side asks for discoverable bank records and the other side does not have the bank records already printed on their desk, they cannot respond, "The records are not in my possession." They have to go to the bank and get the records to make a proper response.
Each side can issue subpoenas to third parties for production of records. For example, if one side did not produce their bank records, the requesting side could simply issue a subpoena to the bank for production of the records. There are limitations to subpoenas. Due to HIPAA, subpoenas are generally ineffective for medical records. Additionally, subpoena power does not mean much if you do not know which bank to send the subpoena too.
Each side can ask the other side or other witnesses to appear, be sworn in under oath, and questioned as if they were in a courtroom. Depositions are powerful tools for learning information and for preserving sworn testimony. Deposition testimony is recorded by a court reporter who types down everything that everyone says. Depositions may be videoed as well. Because depositions often involve questioning adverse or hostile witnesses and the judge is usually not present at depositions, depositions can be high-conflict proceedings. It is important to have a skilled attorney who knows how to handle bad behavior by witnesses and attorneys in depositions. We are able to prepare our clients to testify well at depositions.
Other Options
Experts can serve as consultants to help a side assess their information. There are expert services who can help examine and analyze computerized data. In some cases, each side can require the other side to be mentally or physically examined by a qualified expert. We use a combination of different discovery tools to give our experts access to the information they need to make a good report.
Discovery Time Frames and Motions to Compel
Responses to requests for admission, interrogatories and requests for production are all due in 30 days. The lawyers may agree to more than the maximum permitted of each type of question and to decrease or increase the due dates. The judge may allow more or less than than each type of question and the judge may shorten or lengthen the time that responses are due.
Even though the law is clear that the judge can help both sides in lawsuits by changing the default rules about discovery, it is actually very rare to have a judge willing to get involved in a discovery situation and increase or decrease the number of requests a party can ask or to shorten or lengthen the due date.
The law requires each side to a lawsuit to try to work discovery problems out without court intervention. If there is a dispute about discovery, the law actually requires the lawyers to meet and talk about the problems before they can file a motion about the discovery dispute. Before filing a discovery motion, a lawyer should be able to specifically show that they have reasonably acted to resolve the problem. It is generally perceived as unreasonable to file a motion to compel discovery responses on the 31st day. It is always unreasonable to file a motion to compel discovery responses without making multiple phone calls and diligently trying to contact the other side and discuss the issues. However, there are times and circumstances when action must be taken, and when the other side is dodging phone calls and requests to meet, a motion must be filed. The key is showing the judge that efforts have been made to work the problem out, the problem requires court attention and that the case is stalling until the problem is resolved.
Our Approach
We use discovery requests to:
Verify what we know
Fill in the gaps of what we don't know
Strengthen our evidence and our case for settlement and trial
We find that you get more when you give. For example, when we are seeking the other side’s income information, we disclose our client’s income information with our request. Disclosure of requested information encourages reciprocal responses. When the other side plays games and refuses to produce requested information, such as income information, we use our disclosure to make them look bad when we go to court to get an order requiring them to produce the requested information. “Judge, we need their income information to move the case forward. They have no reason not to produce their information, and because we know that each side needs this information, we disclosed our income information to them without them even requesting it.”
Respond before the Deadline
Most attorneys wait the entire 30 days before answering discovery. This is a mistake. There are bad consequences for not meeting the response deadlines. The most severe consequences are for failure to respond to requests to admit. Requests to admit that are not answered within 30 days are admitted. We do not wait 30 days. We use discovery as part of a show of strength. Our record time for completing discovery responses is 3 days. In that situation, the case settled favorably soon after the client made all of his responses, as we had already made initial disclosures in the case as well. There is typically little upside to waiting for weeks before working on discovery responses, and there are huge potential downsides to waiting too long to respond.
Sometimes it is not possible to gather all information responsive to requests. In those circumstances, you will benefit by responding as early as you can with everything that you have, with a note that information is missing and you are working on it. The other side won't be able to give you a hard time as long as you can show why it's taking so long and what you are doing to obtain the information.
Discovery is part of the pretrial litigation timeline. Most courts require discovery to be complete before either side can request a trial date, which may seem self-evident, since discovery is supposed to be done prior to trial. However, some attorneys will delay their work in discovery and never agree that discovery is complete because they are afraid of trial. We know how to deal with those obstructive attorneys and force their hand to either settle or stop interfering with setting trial.
Our Process
Our attorneys have special, advanced training for handling discovery. Most lawyers have not received any training or education for discovery. Many attorneys try to use objections that are illegal and obstructive to the discovery process.
It is a poorly-kept secret that discovery disputes are a favorite way for attorneys to generate lots of billing. We often tell new clients that "Any attorney in town can spend $40,000 of your money fighting a silly discovery battle that does not add one cent of value to your case." If you do not properly gather your evidence and respond to discovery, your case may stall while your attorney fees keep growing, or, even worse, you may be sanctioned and prevented from presenting all your evidence at trial.
We do not use those poor tactics, and we know how to deal with bad behavior by other attorneys. We have taught other lawyers about the right way to do discovery and about how to deal with common types of bad behavior that people use to try to avoid answering discovery questions. We have other methods of obtaining and preserving information that are proprietary to our law firm. Our clients have insight and access to information about the value of discovery that many attorneys do not even know. It is all part of how we handle cases.
