Discovery in Virginia Family Law Cases
Discovery is a pre-trial procedure for obtaining information and evidence from the other party or non-parties to a lawsuit. In Virginia divorce, custody and other family cases, discovery may include:
- Interrogatories – written questions to be answered under oath;
- Requests for Admissions – written allegations to either admit or deny under oath;
- Requests for the Production of Documents – compelling the production of various documents and records, such as bank statements, tax returns, emails, etc.;
- Subpoenas – requesting materials or witness testimony from third parties; and
- Depositions – compelling witnesses to answer questions from an attorney under oath in person or via live video.
A party’s access to these discovery tools will vary according to the court in which the case is filed. In a juvenile and domestic relations district court, a party must request permission from the court to conduct formal discovery. In a circuit court, however, discovery is allowed by default and neither party has to ask the court’s permission before proceeding.
In Fairfax and some other jurisdictions, “model discovery” is commonly utilized. Model discovery consists of certain standardized interrogatories and requests for production for documents that address common inquiries in divorce, custody or support cases. When practitioners use model discovery questions, they are able to limit the other side’s ability to object, as the model questions are considered typically relevant and legitimate.
It’s important to note that the point of model discovery is not to displace the tailoring of case-specific discovery with generalized discovery, but to assist family law practitioners with casting a wide net in order to obtain relevant and necessary information from the opposing side.
The purpose of discovery is to enable each party to determine the facts of the case and ascertain what evidence may be available for use at trial or to effect a settlement. This prevents a “trial by ambush,” with secret witnesses and exhibits being presented without advanced notice. Responding to discovery requests is not optional, and failure to answer fully and truthfully can result in punishment by the court.
Tips for Surviving the Discovery Process
The discovery process can be lengthy, costly and downright unpleasant. Here are some tips for surviving the process in your Virginia family law case:
1. Take Advantage of Informal Discovery
If your case is contentious and discovery is a possibility, ask your attorney to explore the prospect of “informal discovery,” an exchange of information and documentation without court oversight or rigid rules. This is perhaps the number one way to save money in your family law case. The drafting of discovery requests and responses, as well as the gamesmanship of objections, deficiency letters, etc. can be quite expensive and time-consuming. It draws you and your spouse further from settlement opportunities, usually for months. It creates more vitriol and suspicion.
To some degree, trust is required (if not between the parties, at least between the attorneys) for an informal exchange to work. Of course, in some circumstances formal discovery is necessary, but in most cases an informal exchange will suffice. If the other side fails to follow through, you can always proceed with the formal court-supervised discovery process instead.
2. Be Thorough
If formal discovery can’t be avoided, then you should attack the process of responding with zeal and honesty. Treat it as a good opportunity to gather your thoughts and evidence in preparation for trial or settlement. What documents are most important to your case? Which witnesses will have the greatest impact on the judge? What evidence will help you convey your story to the court? The earlier that you can begin considering these questions, the better.
Once discovery is issued, parties typically have 21 days to respond. However, attorneys (in collaboration with their paralegal to keep costs down) will likely need several days to compile, review, and complete the responses as well. You can make the process less stressful by beginning to compile documents that are in your possession or reasonably attainable before the discovery process has even begun.
Being thorough is also important to prevent the additional cost of facing a “motion to compel” discovery responses, which the opposing party might file if you fail to provide full and complete responses. In extreme cases, the judge can order the non-responsive party to pay some of the other side’s attorney’s fees, or can limit the evidence presented by the non-responsive party at trial. You don’t want to begin your divorce trial with one hand tied behind your back because you’ve missed important discovery deadlines.
3. Demand Thoroughness
If you’re stuck in the black hole of the discovery process, you might as well demand a full and complete production from your spouse as well. Have your attorney prepare a deficiency letter to the other side, laying out each and every concern with your spouse’s discovery responses, whether information is missing, incomplete or simply nonsensical or false. Set a deadline for supplementation. Make sure that deadline has real consequences, which often means filing your own motion to compel discovery responses.
Demanding thorough discovery responses from the other side will help to build your case and ensure that you aren’t missing anything crucial. This in turn will empower you to make smart decisions in settlement negotiations, and to prepare for a possible trial.
4. Object or Assert Privileges When Appropriate
You’re entitled to object to questions if they are overly broad, unduly burdensome, beyond the scope of the subject matter of the litigation, or designed to annoy, harass or intimidate, just to name a few reasons. Your attorney can help you determine what is objectionable and what’s fair game.
You can also assert a privilege, such as the Fifth Amendment right against self-incrimination, in some instances. Make sure not to go overboard on objections, as the scope of inquiry permitted by the Rules of the Supreme Court of Virginia is generally very broad. A document doesn’t need to be admissible in court for it to be requested in discovery.
Make sure not to object to the same or similar questions that your attorney asked of your spouse. This comes up quite frequently and could make you and your attorney look foolish when exposed.
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