Discovery in Corona Divorce Cases
Discovery is a legal process by which a party can obtain valuable information from another party during the course of a divorce case. While discovery is in general an “out-of-court” process, it is formal in the sense that it is supported by the California Code of Civil Procedure (CCP) and any noncompliance can carry legal implications for the responding party.
When is discovery used?
Discovery is a useful tool at any stage of a divorce but it is most commonly used after financial disclosures have been exchanged between the parties or when there is a pending hearing. While many believe that it is unnecessary, it is very useful for those who are unsure of the existence of a property that could be reasonably construed as community property, or when a party’s income is not clear or substantiated. Whether the subject property of discovery had been inadvertently withheld or deliberately omitted, discovery would be the process to obtain such crucial information. For example, when a spouse believes that the other spouse misappropriated possible community funds, discovery could assist the first spouse in asking the second spouse whether additional community funds exist, the location of those funds, and documentation related to those funds. This could assist the pro se party (self-represented) or attorney in obtaining information that could be presented to the court to ensure that the first spouse be entitled to what is rightfully his/her community portion. Otherwise, both parties could finalize the divorce without the first spouse receiving their fair portion of the community estate.
Types of Discovery Methods
There are many types of discovery that could be utilized, but not all of them may be necessary. Discovery methods include:
- Demand for Production of Documents: This is one of the most commonly used discovery tools. This involves requesting documents or tangible things that could be used to ascertain proof for a future hearing or trial. The most common documentation requested in a divorce are bank statements, tax returns, business records, retirement account statements, and others. Although these kinds of documents are typically expected in the financial disclosures to support various asserted valuations by a party, not all parties are forthcoming with information or even accurate information. The request may also include a demand for electronically stored information, or ESI. This may include hard drives, emails, text messages, social media information, and other similar data.
- Requests for Admissions: Another effective tool is known as a request for admissions. Although not seeking documentation, this discovery tool contains statements by the propounding party (requesting) to which the responding party must state “admit” or “deny.” This is useful for parties who may have suspicions about the other party’s conduct but are unsure. This is a safe means by which a party can get the other party to either affirm or deny the requesting party’s suspicions. This tool can be used to guide a party to narrow the scope of future discovery or confirm that the other party could be making false statements. This discovery tool is used less commonly in divorces. For example, the requesting party might state “On August 24, 2016, you transferred $10,000 out of a joint checking account.” The responding party will respond by stating “admit” or “deny”.
- Special Interrogatories: This discovery tool is commonly used and can be equally or more valuable than the others as the questions can be narrower and more targeted. While requests for admissions require the responding party to respond with “admit” or “deny,” special interrogatories are in the form of a specific question, requesting a specific answer. Answers are not limited to “admit” or “deny.” For example, the requesting party can ask where the responding party moved particular assets or funds in a joint bank account.
- Form Interrogatories: One of the most commonly used discovery tools in divorces is known as the form interrogatories. Not only are all the requests in a judicial council form, but the formatting of the questions is already on the form. Depending on the complexity and the issues at hand in the case, a party or attorney can select any number of requests. For example, in cases where there are no minor children between the parties, the requesting party or attorney can select all the form interrogatory questions except those pertaining to minor children.
- Demand to inspect property: With a 30-day advanced notice, a party can demand to physically inspect real property or personal property of the other party.
- Electronically Stored Information (ESI): With society becoming more technologically advanced, information has turned from the physical to the electronic. Many individuals have started to turn to storing their information electronically for the purposes of space efficiency and ease of access. This has caused the necessity to use the discovery process to obtain not only physical copies of documents but also electronic copies.
- Depositions: A deposition is a directive that some individual, either a party or non-party with relevant information, come and testify in the presence of a “court reporter” that transcribes the testimony. The witness is sworn under oath and the attorney asking the questions may inquire about anything relevant to the pending divorce or paternity case.
- Subpoenas: A subpoena is a directive to (usually) a third party demanding a personal appearance to testify or demanding documents. Subpoenas are inherently formal as most subpoenas carry legal consequences such as sanctions for a responding party who does not comply. There are 2 types of subpoenas: subpoena duces tecum and witness subpoenas.
- Subpoena duces tecum: These subpoenas ask a responding party to produce documents that are listed along with the subpoena form. This is a common subpoena in that most documents that are provided to the court are considered to be lacking foundation. By subpoenaing documents, courts will generally accept them as they come from a particular source which can attest to their authenticity. These subpoenaed documents must include an affidavit of the “custodian of record” of the documents.
- Witness subpoenas: These subpoenas require a particular individual to be present in court to provide live testimony. Since most declarations by individuals are typically considered as hearsay, the only way a party may be able to get a statement into evidence from a witness is to subpoena them and require them to testify in open court.
What if the discovery requests are unreasonable?
Many times, a party’s discovery requests can be overbroad and burdensome. The other side might be reaching for information improperly. Does this mean you still have to respond? In some cases, the answer is No. There are common objections that can be raised and asserted in response to unreasonable discovery requests. These objections may include:
- Overbroad: When the scope of a question is so broad and general that the responding party cannot ascertain specifically what information the requesting party is seeking, the responding party can assert this objection.
- Burdensome: There are times when a party’s discovery requests seek information or documentation over an unnecessary amount of time which would cause burden upon the responding party to obtain such information. The responding party can then assert this objection. For example, when a party seeks bank statements over the span of twenty years, this is considered burdensome and the responding can likely assert this objection and not comply.
- Relevance: Any discovery request must reasonably lead to discoverable information that is pertinent to that particular’s party’s case. If the request is completely unrelated to the case, then the responding party may assert this objection.
- Compound question: When a party has a question that contains more than one part. For example, this is an impermissible compound question: “Describe where you were on the night of August 24, 2016 and describe where you went on the evening of August 25, 2016.”
- Vague and ambiguous: When a party’s request is not clearly stated or doesn’t contain enough information for the responding party to pinpoint exactly what is being requested, the responding party can object. The point of discovery requests is to be specific as to what is being requested and the time frame.
How long until I need to respond to my spouse’s discovery requests?
Generally, a responding party is required to respond to discovery within 30 days of being served with the discovery requests. Fortunately, for those who intend to mail their responses, the California Code of Civil Procedure provides for an additional 5 days for mailing. Otherwise, responses served by personal service must be provided within 30 days. Often, lawyers will grant other lawyers extensions to respond to discovery.
What happens if I don’t respond to discovery by the deadline?
When a party does not respond to discovery, the requesting party can file what is known as a “motion to compel.” This motion to compel is typically filed with the courts to notify them that a responding party never responded to the requesting party’s discovery, or that the responses were inadequate. A motion to compel is an extremely difficult and detailed motion and anyone filing this type of motion should consult an attorney. A court hearing date will be set in which the court will “compel” and order the responding party to respond. If the responding party continues to fail to respond, the responding party could be subject to monetary sanctions or worse, “evidentiary” sanctions for failing to respond by court order.
Can I only do one set of discovery?
No, you can do multiple sets of discovery. However, be aware that an unnecessary number of sets could be problematic as well. Depending on what kind of information is provided by the responding party, further sets of discovery may be necessary as discovery is ongoing throughout a divorce. Use your own judgment to determine how many sets of discovery may be necessary, or better, seek the guidance of a seasoned family law attorney to help you come up with a discovery “plan”.
Costs of Discovery
As with any other legal cost, discovery can become expensive as it requires hours of review and compilation by an attorney. On the other hand, it can be time consuming for pro se litigants who desire to do this on their own. Choosing whether to do discovery or limiting discovery to particular issues can mean the difference in a divorce case. Speak to one of our attorneys today to obtain a free consultation and see whether discovery is warranted for your case.