Discovery is the next step of a family law case prior to a hearing. Discovery is the process of asking for and providing evidence between parties prior to a hearing. Discovery looks for all relevant evidence that isn’t privileged, but those words don’t necessarily mean the same thing in the law that they do in regular life.
The Family Law Process – Part 7: Discovery (Rules 26-37)
Sometimes in a family law case, all efforts to negotiate or mediate fail and a hearing is necessary. In order to make your case to the judge, you will need proof of your claims. But what is your recourse if the other party has all of the information? How can you prove that your spouse makes more than you, for instance, without access to their paystubs or bank statements? Or the value of their car if you don’t know how much is still owed on it? Luckily, the court provides a way to get that information: Discovery.
“Evidence” can be anything. Most people think of evidence as tangible things like documents or objects, but it can also be intangible things like testimony, information, admissions by either party, or remembered conversations.
“Relevant” evidence is anything that helps show something or leads to other evidence that matters to the specific claims that you have made. An equitable distribution case, for example, is about dividing assets. So information about assets, like income, debt, or home values, is “relevant,” but information that isn’t related to assets, like your spouse’s terrible singing voice, is “irrelevant.”
“Privileged” evidence is evidence that is protected by the law. This includes communication with your attorney or materials and notes that your attorney uses to prepare for a hearing. It can also include medical information shared with your doctors or nurses or information shared with a clergy member, although a judge can override this if the judge decides that it is “necessary to a proper administration of justice.”
There are four basic types of Discovery.
- Interrogatories are questions to the other party that have to be answered under oath. You are limited to 50 of these questions.
- A Request for Production asks for documents, stored information, and physical objects.
- A Request for Admissions asks the other party to admit certain things, like the date of a marriage or a separation. These admissions can save time and effort so that neither side wastes time presenting evidence about things that the parties both agree on.
- Depositions are interviews with parties or witnesses, done under oath. A deposition is a lot like being a witness in a hearing, but the judge isn’t there. An attorney will ask questions and a court recorder will write down what is said.
Discovery can be filed and served on the other party any time after a complaint is filed. Requests for production or admissions and interrogatories must be answered within 30 days of being served, and the court can grant an extra 30 days to answer if it is requested. The response must be in writing and under oath. It is important to get an answer back within the deadline. If you miss the time limit, the admissions that the other party asked for may be considered to be admitted.
Discovery is the shovel that lets you dig up information and build up your case for trial. It can level the playing field in cases where one side has all the information, and it is the backbone of making sure that hearings are fair.