Discovery in Family Law Cases
Once a case has been filed, discovery is a process that is governed by a set of rules issued by the Supreme Court of Virginia. It is important that you understand how discovery works and the general nature of the rules that govern it. Failure to comply with discovery rules, or failure to provide a complete and timely response, can result in significant negative consequences for your case. Therefore, to help you understand what you need to know about this process, there are some important points for you to keep in mind, below.
What is discovery, exactly?
There are various mechanisms, or tools, whereby each side can obtain information from the other. The two most common are Interrogatories and a Request for Production of Documents.
Interrogatories. Interrogatories are written questions that ask the other party to provide a written answer. These written answers are under oath. An example of a typical interrogatory is below.
Request for Production of Documents. Document requests ask the other party to produce specific types of documents. An example of a typical document request is below.
What are some of the general rules governing discovery?
As mentioned previously, the Discovery process is governed by the Rules of the Supreme Court of Virginia. These rules govern how cases are litigated in all the state courts in Virginia. So they apply to your case. In essence, these rules state:
- Discovery can be obtained regarding any relevant subject. In divorce cases, much of the discovery will revolve around financial issues. But they can also address custody and other issues like the mechanics of trial (what witnesses you intend to call, what legal claims you plan to pursue, etc.)
- You are required to provide any and all information that is: A) responsive to the request; and B) that is in your possession, custody, or control. This means, that even if you don’t currently have the information – if you are capable of obtaining it, you must do so.
- Generally speaking, you have 21 days to respond to discovery once it is issued. There can be some slight modifications to this deadline depending on how the requests were delivered.
- If you fail to respond to discovery in a timely manner, then the court (and opposing counsel) can take several steps to address a failure to respond, or a failure to respond in a complete manner. These steps may include things like:
Making you pay attorneys fees to the other side
Limiting your ability to put on evidence at trial
Prohibiting you from asking the court to do things on your behalf (e.g. award spousal support).
In other words, failure to comply with discovery requests can result in several potential negative outcomes. The court can ‘kick out’ your case. The Court can prohibit you from putting on evidence at trial (effectively sinking your case). Further, the Court can make you pay attorney’s fees to the other side. Therefore, providing complete and timely responses are important.
The most common mistake clients make in discovery is failing to provide a complete response in a timely manner. For example, the requests asks for documents from the client’s bank account for the past two years, but the client only provides a couple of random account statements. When clients do this, it can significantly increase the cost of your case. Here is why.
Let’s continue with the example of the client providing just a few account statements, instead of the full two years worth. When this happens, opposing counsel will review the response and determine that it is deficient. Opposing counsel will then contact your attorney, and your attorney will have to coordinate with opposing counsel exactly what remains outstanding. Your attorney will then have to communicate this to the client. Depending on the client, your attorney may or may not have information to provide to opposing counsel to correct the deficiencies. If deficiencies remain, opposing counsel then files a motion. Your attorney may then have to file a response to the motion. Your attorney then may have to go to court to address the motion…
Hopefully this will give you a sense of how failing to provide a complete and timely response can cause a significant amount of work for everyone involved. To help keep costs down in your case, avoid this by providing a complete and timely response to discovery.
The most important reason for doing a good job in discovery – your attorney needs this information too.
Discovery is also important from a practical perspective because it helps you prepare your case. Nearly all of the information your lawyer will use will come from your discovery. So failing to provide a complete discovery response actually hurts your case because this is the information that your lawyer needs to present your case.
When it comes to discovery, the golden rule is this: If you do not include information in your discovery responses, you will not be able to use it in court. Although there may be exceptions to this rule, it is a good rule to live by.
Because of this, it is imperative that you provide complete discovery responses because I will be using this information to present your case. You don’t want your lawyer to present a case based on incomplete or missing information, do you?
Finally, keep in mind that you will likely have to “supplement discovery.” This means that after your initial response, you will likely have to supplement by providing new bank / account statements (and similar information) that you have received after your initial response. So as this information becomes available, collect it and keep it so you can add it to your discovery response.