Formal Discovery in Divorce Cases

Below is a summary of “formal” discovery procedures that may be utilized throughout the divorce process. Any of these procedures below can be used “informally” buy merely requesting the needed information from the other party or the other party’s attorney. In fact, the informal discovery process can save litigants money and time, and should be used if the parties have an amicable working relationship. Unfortunately, when parties are not amicable, they may refuse to produce information unless compelled to do so by law, such as through a more formal discovery procedure.

Formal Discovery

The scope of discovery requests is pretty broad; it includes all unprivileged information that is relevant to the divorce. Although California courts are pretty liberal when it comes to allowing broad discovery requests, there are limits. For example, when determining a party’s current income to calculate support going forward, it is not relevant to request a party’s financial records dating back more than five years.

As stated above, the information sought must also be unprivileged. There are several types of privileges parties hold, mostly guaranteed under the right to privacy and the right to not incriminate oneself. Here are a few examples of privileged information that may be protected from formal discovery procedures:

  • Privilege against self-incrimination: where discovery seeks information that would reveal one’s criminal activity, exposing them to criminal consequences.
  • Attorney-client privilege: This privilege is more well-known. This includes any communications between an attorney and his or her client in the course of representation.
  • Attorney “work product”: The purpose behind the work product doctrine is to allow an attorney to prepare his or her case or for trial without having to worry if the other party will be able to figure out their strategy. This prevents the other side from unfairly benefitting from another attorney’s labor and efforts.
  • Mediation confidentiality: Communications made for the purpose of mediation or negotiations are generally confidential, not discoverable and not admissible at trial. This is to encourage parties to negotiate and mediate freely to settle their issues outside of court. A party would be less inclined to genuinely negotiate if they knew that what they said or communicated during those negotiations were going to later be used against them.

In order to obtain relevant and unprivileged information, here are a few procedures that can be used:

Depositions: Depositions may be taken of parties and non-parties (anyone else who is not the Petitioner or Respondent who may have relevant information about the divorce). The questions and answers are recorded and a transcript is produced for later reference. In order to avoid abuse of this lengthy process, a person may not be deposed more than once without a court order based on a showing of good cause.

Interrogatories: Interrogatories are written questions calling for written answers under oath. They may only be propounded between parties to the action, not others. The answers must be signed under oath (CCP § 2030.250) by declaration under penalty of perjury affixed at the end of the answers. It is as if the person answering is testifying in court. Interrogatories are limited to only 35 questions per party, which may be asked across several set of questions. The responding party must respond to each question separately within 30 days after the date the interrogatories were served, plus additional time if the interrogatories were served via mail.

The form interrogatories are designed to elicit fundamental information common to virtually all marriage dissolution litigation and are already pre-printed on a form. Discovery regarding unique circumstances in a marriage or divorce may require “special” interrogatories, which are question written by the party, not already pre-printed on a form.

Requests for Admissions: Requests for Admissions (RFAs) may be used by a party to force another party to “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.” (California Code of Civil Procedure section 2033.010). Unlike other discovery tools, which are aimed at uncovering factual data that may be used to prove points at trial, RFAs are used to put disputed issues to rest so they will not have to be tried. This helps to reduce trial time, and allows the parties to focus on the important issues. For the most part, each party is limited to serving a maximum 35 RFAs on each other party. The responding party must respond within 30 days after the date the admissions were served, plus additional time if the admissions were served via mail.

Inspection Demands or Demands for Production: A demand can be used to compel a party (not nonparties) to produce for “inspection, copying, testing or sampling documents, tangible things and electronically-stored information in his or her possession or control.” (California Code of Civil Procedure section 2031.010). A demand can also be used to obtain permission to enter onto another’s land (for purposes of measuring, surveying, photographing, testing or sampling). The responding party must respond within 30 days after the date the demands were served, plus additional time if the demands were served via mail.

Physical and Mental Examinations: Upon a showing of good cause, the court may order a physical or mental examination of any party or person in the custody of a party whose physical or mental condition is relevant to the divorce proceedings. Examinee’s condition must be “in controversy”: In order to uphold one’s privacy rights, the examination will be specifically limited to whatever condition is directly related to the subject of the litigation. In a divorce or family law proceeding, this could mean a spouse’s physical condition, and how that effects the spouse’s ability to work and pay support. A spouse’s mental condition might be relevant to a child’s best interests in regard to custody and visitation. Genetic testing, of course, is relevant where paternity is at issue.

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