Discovery is used in family law cases to seek out relevant and unprivileged information from the other party or non-parties, in order to resolve the issues of the case. (See blog post, “Formal Discovery in Divorce Cases“) Unfortunately, it is common for discovery requests to be left ignored, or to be answered incompletely. Below are enforcement options available to a party seeking a response or further response from another party or witness.
To enforce discovery, the requesting party must file a Motion to Compel. This is a request for the court to order the other party to respond to the propounded discovery. Because discovery is served between parties directly, without court involvement, this might be the first time the court is getting involved directly with discovery.
Prior to filing a motion to compel, however, the requesting party must first “meet and confer” with the other party. The motion must include a declaration stating facts showing a “reasonable and good faith attempt at an informal resolution” of the issues presented by the motion. This can be done in person, by phone or by letter. The adequacy of meet and confer efforts lies within court’s discretion, but there must be at minimum a sincere effort at informal negotiation. Merely arguing, debating or repeating a position does not satisfy this standard. As one court in California stated, “A reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel … Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Super.Ct. (EMC Mortg. Co.) (1998) 61 Cal.App.4th 1431, 1437-1439.)
Failure to engage in this meaningful meet and confer communication constitutes a “discovery misuse” for which monetary sanctions (punishments) “shall” be imposed. (California Code of Civil Procedure section 2023.010(i).) This is true even of the other side did not cooperate with discovery. If the requesting party does not attempt to resolve the issue outside of court, it too could be exposed to monetary sanctions.
Enforcing Discovery
If the court does grant the motion to compel, requiring a response or further response, it may also include a costs and fees sanction against the party who improperly resisted discovery. This includes reasonable expenses, including attorney fees, incurred as a result of the discovery misuse unless the person subject to the sanction acted with “substantial justification” or ordering the sanction would be “unjust”/ Note that this monetary sanction may be imposed against the party personally, or any attorney advising that conduct, or both.
What about an award of reasonable attorney fees to a party that isn’t actually incurring fees to enforce the discovery process? Attorney fees cannot be awarded to a party who represents him or herself, or a pro per litigant. But, pro per litigants can recover as a monetary discovery sanction any reasonable expenses that were incurred in enforcing discovery, such as photocopying, transportation to and from court, and other identifiable and allocable costs.
It’s also important to acknowledge that a party requesting discovery can also be sanctioned for “discovery misuse” For example, making persistent attempts to obtain information or materials that are outside the scope of permissible discovery. Another example includes using discovery in a way that causes unwarranted annoyance, embarrassment, or undue burden on the other party or a witness. If discovery abuse is determined to exist, then the court may relieve the other party from responding to it.
