How to Survive the Dreaded Discovery Process
In the course of your divorce or custody litigation, you may be required to answer written questions under oath (Interrogatories), provide copies of various documents that are relevant to your case (Requests for Production of Documents), and admit or deny various allegations from your spouse (Requests for Admissions). Along with depositions and subpoenas, this process is collectively referred to as “discovery.” And it’s no fun.
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. Discovery can easily become a boondoggle for all parties involved. Here are four tips for surviving the process:
1. Take Advantage of Informal Options. 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. I can’t stress it enough: this is 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. 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. Being thorough is also important to prevent the additional cost of facing a Motion to Compel Discovery Responses, which is filed by the opposing party when you’ve failed to provide full and complete responses. In extreme cases, the judge can order the nonresponsive party to pay some of the other side’s attorney’s fees, or can limit the evidence presented by the nonresponsive 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 production, 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 a Motion to Compel Discovery Responses. Demanding a thorough response will help to build your case and ensure that you aren’t missing anything crucial before assessing decisions about trial or settlement. This is the best way for your attorney to feel well-prepared for what’s ahead.
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. Finally, make sure not to object to the same or similar questions that your attorney asked of your spouse. This comes up quite frequently and will make you and your attorney look foolish when exposed.
The divorce lawyers at Livesay & Myers, P.C. have extensive experience with the Virginia discovery process. If you are facing a divorce or custody matter in Northern Virginia, contact us to schedule a consultation today.