What Is the Discovery Process?

The bulk of any litigation is comprised of what is known as the discovery process. This is nothing more than an exchange of information that is relevant to your case. When you hire an attorney, most people think that they’ve hired someone to do all of the work for them so once the litigation process begins they feel blindsided and stressed by learning that is far from the case.

In divorce, there are numerous issues to be resolved and unless both parties come to a mutual agreement pretty quickly, information will need to be provided by each party in support of the claims each has made. Often the most hotly contested issues relate to, alimony, asset division, child custody, and child support. Trying to find common ground in these areas means engaging in a lot of research and digging, which is what the discovery process helps facilitate.

How the steps of discovery are used to reveal evidence

The evidence sought by both parties will be accomplished through the following discovery procedures:

Interrogatories

These are written questions that you will provide written answers to and can be about virtually anything relevant to your divorce. The information is used to confirm and refute claims that have been made. While there are a number of standard questions that get asked, parties each have a limit they can exhaust and once that number has been reached, they must get permission from the court to force you to answer further questions.

Requests for production of documents

This is a written list of documents you are being requested to provide. In most cases you will have to make copies that your attorney will submit along with your responses specifying what you are providing for each request. Again, there is a limit to how many requests can be made without permission from the court.

Requests for admissions

This tool is something that requires very careful attention because a mistake can result in unintentionally generating evidence for your spouse to use against you. These requests are better viewed as statements of fact that each side alleges happened. If something is untrue and it is not specifically denied in time, the court then takes it as being factually true. An example if this could be a spouse who suspects that you cheated but has no actual evidence of it sends a request asking you to “Admit that you had an affair with Mr. Smith between January 1, 1983 and December 31, 1985.” If it’s false, and your response denying this isn’t received by the statutory deadline, the court may deem that you admitted that you had an affair.

Depositions

This tool is used to get statements from witnesses on record by having a conversation with them in the presence of a court reporter who later provides a written account verbatim of everything said. These conversations are had while the witness is under oath and can be used to uncover evidence one party didn’t know existed, or can help gauge the credibility of the witness prior to trial so that you know whether he or she will be a strong or weak influence on the judge.

What kind of information will I have to turn over?

The discovery process can be time-consuming. It seems like every time you think you’ve provided everything, you’re asked for more. While most of what you’ll be asked for is typically standard when it comes to the discovery process, some information may fall under a privilege such as attorney work product, which means your spouse is not entitled to it. An attorney will immediately recognize this as protected information that won’t be provided to the other side.

While information requested and disclosed differs based on the specifics of each case, in general you can expect to provide:

• The names and contact information of witnesses, along with the information they have to offer
• Bank names, account numbers, balances, and copies of statements
• Credit card names, account numbers, balances, and copies of statements
• A list of marital property in your possession
• Real estate you own along with an approximate value
• School and medical records for any children you share
• Employment and income information
• Photos or other documentation you plan to use as evidence at trial

You can be punished for refusal to comply with discovery

Some parties can try to obtain information that amounts to a fishing expedition. Attorneys and courts recognize when this is happening and rarely will certain requested information have to be provided under those circumstances. However, failing to cooperate with a legitimate discovery request or tampering with discoverable evidence before disclosing it can result in:

• Sanctions, which means you may have to pay a fine to the court or even pay your spouse’s attorney fees from having to bring the action as a result of your misconduct.
• Dismissal of a claim or counterclaim from the lawsuit.

An attorney can be sanctioned for knowingly refusing to turn over properly requested evidence.

Furthermore, there are rules that need to be followed during the discovery process, which includes limitations on the requests each party can make using certain discovery tools. If abuse occurs, it can again require intervention by the court, which can also produce sanctions.

If you are about to embark on a difficult divorce, or have attempted to reach an agreement on your own without success, it may be time to protect your interests by discussing your concerns with an experienced divorce attorney. Schedule a consultation today with one of our Rockville divorce attorneys at McCabe Russell, P.A. by calling 443-917-3347, or feel free to reach out to us through our contact form.