What are Interrogatories and Requests for Production of Documents?

In almost every lawsuit, including divorces, the parties have the right to gather information from the other side in a process called “discovery.” There are many discovery tools available. The one that’s most familiar to non-lawyers is probably adeposition, where one party is questioned, under oath, by the other party’s attorney. But not all discovery is face-to-face. Much of the discovery process is conducted on paper, including through interrogatories and requests for production of documents.

If you are involved in a divorce, it is likely that your attorney will send out interrogatories and requests for production of documents on your behalf. It’s equally likely that your spouse’s lawyer will send some for you to answer—so you should be prepared for what’s involved.

What are Interrogatories in a Divorce?

Interrogatories are written questions that require written answers under oath. In Maryland, one party can submit only 30 interrogatories to the other without getting court approval for additional questions, so it is important to be strategic in drafting questions.

The primary reason attorneys use interrogatories is to gather specific information. For example, there may be questions about the location and amount of various assets, any property the responding party claims is non-marital for purposes of equitable distribution, or the details of the responding party’s claimed living expenses.

Attorneys may also use interrogatories to clarify disputed issues in the divorce. For instance, if one party claimed that their spouse committed adultery or other marital misconduct, an interrogatory might ask that party to describe all evidence they have to support that claim. The answers might help the attorney asking the question decide to investigate further, or help establish the strengths and weaknesses in each side’s case.

Interrogatories are often used to gather evidence in support of one party’s position (or to damage the other spouse’s argument). For instance, if one party claimed they were unable to afford to pay spousal support, answers to questions about their income, expenses, and discretionary spending could show otherwise.

Because interrogatories are questions gathered under oath, they can be used to impeach a party’s credibility at trial. For instance, if a party answered a question one way in an interrogatory, and another way at trial, opposing counsel might reasonably suggest that they were lying at one time or the other—or both.

What are Requests for Production of Documents?

Requests for production of documents are just what they sound like. One party can ask to inspect or get copies of relevant documents in the other spouse’s possession, custody, or control: anything from income, asset, and tax information to records of communications, credit card statements, documentation of child-related expenses, and more. In the past requests for productions of documents were for just that: literal documents. Now these requests also include electronically stored information, such as emails, computer files, and pictures.

Requests for production of documents may only be sent to the opposing party, not third-party witnesses. If you’re requesting a document to which you have access, the other party might decline to provide it, citing your access. But if it’s something they have ready access to and you do not, they must make the document available or provide you with a copy. Of course, you must do the same when requested to produce documents.

Responses to interrogatories and requests for production of documents must generally be provided within 30 days. Unlike with interrogatories, however, there is no limitation on the number of requests for production.

What Happens if I Don’t Respond to Interrogatories or Requests for Production?

There’s no getting around it: you may be asked questions you’d rather not answer honestly, and there may be documents you would prefer not to hand over to your spouse and their attorney. So what happens if you refuse, or simply fail, to respond to these discovery requests?

If you don’t respond within the time given, the opposing party may file a motion to compel your compliance with the court. Unless the court finds that you had a good reason for failing to provide the requested information (such as that the information was privileged, or not relevant to the case), it may order you to provide the requested material within a certain time. However, if you have a good reason for not answering, you should make an objection on that basis rather than simply not providing the requested information and documents.

If you still don’t comply even after the court specifically orders you to, you could face sanctions. Sanctions might include fines, or being forced to pay the other side’s attorney fees that were necessary to try to gain your compliance with discovery, preventing you from presenting certain evidence at trial, or even having certain issues, or even the main issue in the case decided against you.

The court may also exclude certain evidence that you failed to provide from being presented in the case, to your great disadvantage. In extreme cases of non-compliance, the court might even enter a default judgment against you, giving your spouse the outcome they wanted on certain issues because of your failure to participate in the process. You could also be held in contempt of court for ongoing refusal to comply with orders regarding discovery. That could mean more fines, and in extreme cases, even jail time.

What Can I Do if I Don’t Want to Provide Answers or Documents in Divorce Discovery?

Most of the time, serious punitive measures are not necessary to enforce discovery, but they can still happen. The bottom line is there’s no real advantage to trying to skirt a legitimate discovery request, no matter how badly you want to avoid sharing the information. So what can you do?

It’s simple: talk to your lawyer. You are paying your divorce attorney good money for their advice and advocacy, so be honest with them. They may be able to make legitimate objections to some discovery requests, or get an extension of time to answer if needed. If you must provide information that you think may be damaging to you, a skilled divorce litigator can help to minimize the damage—but only if they know the truth.

To learn more about interrogatories and requests for production of documents in divorce, contact Strickler, Platnick & Hatfield to schedule a consultation.