In court procedure, including litigated family law cases, “discovery” has a specific meaning. Discovery is the process by which parties to a lawsuit, such as a divorce, request and exchange information to help them prepare for negotiations and for trial. Requesting information in discovery means that each side has the right to ask questions, obtain information and request documents from the other side or from third parties, such as banks, retirement accounts, credit card companies, schools, and employers.
The discovery process helps parties learn the strengths and weaknesses of their case, and prevents parties from being surprised by evidence the other party presents at trial; in short, the rules of discovery promote a fair litigation process. These rules help parties obtain the relevant and necessary information they need to build their case—and resolve it where possible.
In general, a party may seek discovery regarding any non-privileged matter that is relevant to the party’s claim or defense. Understanding what information may be discoverable during the family law litigation process is critical. If information is discoverable, the other side must share it with you if you ask for it in the right way. Likewise, if information is discoverable and your opponent asks you for it in the correct fashion, you must reveal the information. The law encourages broad discovery, but just because something is discoverable does not mean it can be used as evidence at trial—that is a different set of rules altogether.
Because most divorces and child custody matters involve some similar issues, many attorneys have standard discovery tools that they use in every case. At Strickler, Platnick & Hatfield, we view the use of standard document requests in discovery as a missed opportunity. As with many things in life and legal practice, what you get out of the discovery process depends in large measure upon what you put into it. We believe that a targeted and individualized approach to discovery requests designed to serve the needs of each client yields a superior result.
The rules that courts apply to the process of discovery allows certain “tools,” or types of requests, common to all cases. Some questions are better designed for family law cases than other kinds of cases; and some are better in specific family law cases than in others. Responding to discovery requests is never optional. If a party fails to respond timely to a request for discovery, the other party can go to court and request an order for the other party to comply. Continued failure to comply paves the way for the judge to punish the noncompliant party. As seen further below, failure to comply with one type of discovery tool, Requests for Admission, creates its own consequences.
Below are descriptions for some of the common types of discovery requests often used by family law attorneys.
Interrogatories are written questions that require a written answer. Answers to interrogatories are given under oath, just like testimony in a trial. In many jurisdictions, parties are limited to a certain number of interrogatories; for instance, in Maryland, the limit is 30 and in the District of Columbia the limit is 40. Accordingly, interrogatories should be drafted with an eye toward eliciting the most essential information.
Interrogatories can cover a wide range of topics, including assets, parenting, and fault in the breakdown of the marriage. Parties who have been served with interrogatories have 30 days to answer them and return their answers to opposing counsel.
Depositions involve a person (the deponent) being placed under oath and questioned by an attorney regarding matters relevant to the case. A court reporter is present to administer the oath and to make a transcript of the testimony given by the deponent. When depositions are used in a family law case, it is often one of the parties who is deposed; however, any third party with relevant information, such as friends, family members, affair partners, employers, employees and others, may be questioned, or “deposed.”
Some states’ rules, such as Maryland, also require a deposition if documents are sought by subpoena from non-parties, but more on this later. For a deposition to occur, a subpoena must be served upon the deponent that specifies the date, time, and place of the deposition. Often, these logistics are arranged in advance, but where cooperation is missing, this is not always the case.
Requests for Production of Documents are written requests from one party to the other to turn over specifically described documents relevant to issues in the case or to allow inspection or copying of documents. The term “document” includes information that is electronically stored.
Requests for production of documents often seek copies of financial documents, such as bank or investment account statements, tax returns, pay stubs, retirement plan documents, vehicle titles, deeds, mortgages, and estate planning documents. However, any document that contains information relevant to the case may be requested. As with interrogatories, responses to requests for production of documents are generally due 30 days after the requests were served.
Subpoena Duces Tecum is a subpoena, or court order, that requires a person or entity to appear and produce relevant materials. Rather than being directed at a party in the case, a subpoena duces tecum is typically directed at a third party, such as a bank, business, or employer who might possess documents relevant to a family law matter. A subpoena duces tecum might, for example, ask a representative of a bank to appear at a certain place and time—such as at a deposition—to produce records of an account in one spouse’s name. In practice, third parties often are invited to produce the documents to the lawyers, accompanied with a formal legal certificate, in which case the deposition appearance may be waived if everyone agrees.
Requests for Admission are exactly what they sound like: a set of written requests for the party to whom they are addressed to admit the truth of certain statements, or the genuineness of certain documents. If that party does not admit or deny a request by the deadline, usually 30 days after service of the request, the item is deemed automatically admitted.
A carefully worded request for admission gives the recipient three options: tell the truth, which may be damaging to their case; tell a lie, which is likely to be revealed and be even more damaging to their case; or ignore the request, in which case the allegation is deemed automatically admitted—and may damage their case.
Mental and Physical Examinations are permitted, with permission of the court, in obtaining a necessary physical or mental health evaluations of the opposing party, in specific family situations. Such evaluations may be suitable to determine a parent’s fitness for having custody or regular access with their child or to determine the capability to work when a parent claims not to have the ability to pay alimony or child support for medical reasons.
Not all litigated family law matters require use of every method of discovery. At Strickler, Platnick & Hatfield, we carefully craft our discovery strategy based upon the unique needs of each case.
The attorneys of Strickler, Platnick & Hatfield each have decades of experience litigating divorces and other family law matters in Maryland and the District of Columbia. We are known for our tactical approach to litigation, including the strategic use of discovery to advance our clients’ goals. Our familiarity with the discovery rules of the jurisdictions in which we practice enables us to make the most effective use of the discovery process, and to deliver superior results.
We invite you to contact Strickler, Platnick & Hatfield to schedule a consultation and to learn more about our use of discovery in divorce and other family law litigation.