What Is Discovery?

In most contested family court cases, it is a good idea to ask for “discovery.” Discovery is the term for the organized exchange of information between the parties. Even though engaging in discovery adds to the expense of the case, learning about the other side’s case and being forced to reveal one’s own case increases the likelihood of settlement. Since both sides can have a better idea what “facts” each side will try to prove at trial, each can weigh how strong or weak their case is relative to the other party’s case. Further, discovery makes trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.

There are basically six types of discovery in family court: 1) interrogatories; 2) requests for production; 3) requests for admissions; 4) depositions; 5) subpoenas duces tecum; 6) medical examinations.

Interrogatories are written questions that may be asked of the other party with responses required to be in writing and under oath. These answers can be used as evidence by the other party at trial. There are standard interrogatories that are defined by the court rules. These standard interrogatories ask for information about the identity of expert and lay witnesses, the briefest synopsis of their expected testimony and the exhibits that the other side has that might be relevant to the issues in the case.

Supplemental interrogatories are additional interrogatories that the party and his or her attorney can uniquely fashion to the particular facts of the case. A party is limited to fifty interrogatories (including sub parts) but, so long as the questions asked are relevant, there is little limit as to what can be asked. Supplemental interrogatories tend to get the most information when they ask specific, limited questions as opposed to opinion or open ended questions.

Requests for production are designed to allow one part to seek documents from the other party. The other party is required to make available for copying documents that are in his or her “possession, custody or control.” Thus, even documents that are not in a party’s possession but are within his or her control (such as banking records or medical records) must be made available for copying. Sometimes the way these records will be made available is by providing the party requesting the documents a release that allows that party to obtain the records from a third-party. In many family court cases the documents that parties have generated while living their life are the best evidence on contested issues.

Requests for admissions require the other party to admit or deny specific facts or to admit or deny the authenticity of documents. It is often helpful to have the authenticity of documents admitted prior to trial so that one can determine whether to call witnesses to authenticate these documents. There are no limit on the number of requests for admissions that can be made on the authenticity of documents. Documents produced by one party can be used by the other party at trial.

There is a limit of twenty requests for admissions on factual issues. Such requests for admission typically work best when dealing with contested factual disputes that do not involve subjective opinions. Asking someone to admit he or she is a bad parent or a spendthrift is likely to lead to a denial of a “fact” that cannot be disproved. However, asking a party to admit or deny contested facts that are narrowly framed (i.e., admit you spend the night of August 12, 2003 in a hotel room in August, Georgia with a member of the opposite sex unrelated by blood or marriage) can be extremely helpful. Sometimes the party will admit the contested fact which makes that fact a “stipulated fact” at trial that does not have to be otherwise proven. More often, the other party will deny the fact in which case they can be shown to be a liar at trial. Further, a party is entitled to fees as a matter of right for proving a material fact at trial when the other party denied the fact without a reasonable grounds for denying that fact.

Depositions allow a party to have any witness (including the opposing party) answer questions orally and under oath. Because one must pay the court reporter for attending the deposition (and transcribing the deposition if desired) and one must pay for one’s attorney to prepare for and attend the deposition, depositions are expensive. They are best reserved for cases in which there are substantial disputes and the parties have sufficient funds to take them.

Depositions are ideal for learning details about the witnesses knowledge of the disputed facts, pinning down that witness (and determining the limits of the witness’s knowledge) so that the witness cannot present more damaging testimony at trial without looking like a liar and seeing if one can get useful admissions from that witness. Such depositions can be used to impeach a witness at trial (i.e., show they are lying, biased or overstating his or her knowledge).

Depositions are also useful when one’s own witness might not be available at the time of trial (often because the witness lives or may be moving out of state or is in poor health). Depositions of witnesses who are considered unavailable at the time of trial can be used in lieu of their appearing at trial.

Subpoenas duces tecum are roughly the equivalent of requests for production except that they may be sent to non-parties. They are especially useful for getting medical records, banking and credit card records as well as school records. They are most useful for obtaining records that a party would ordinarily not have in his or her custody or control, such as hotel room records (useful for proving adultery) or personnel records (useful for proving income, assets or behavioral problems).

The final form of discovery is medical examinations. Unlike other forms of discovery (which can be done in any family court case in which there is an order of discovery), these examinations require an explicit court order. DNA paternity testing or drug and alcohol testing are not thought of as medical examinations but actually they are. A party may request (and the court may order) psychological evaluations in cases in which a party’s mental health affects their parenting ability.

While discovery adds to the cost and complexity of family court litigation, it is foolhardy to undertake a contested family court case in which alimony, substantial marital assets or child custody is at issue without engaging in it. Discovery tools are vital in understanding the other party’s case and preparing for trial.