Discovery is the term used to describe the various ways through which family law litigants seek out relevant and unprivileged information from the other party or non-parties, in order to resolve the issues of the case. Unfortunately, it is not uncommon for a recipient of discovery requests to either answer the requests incompletely or to ignore them altogether.
In a divorce case, both spouses are obligated to provide to the other an accurate, transparent, and full disclosure of all assets and debts. This includes both real and personal property and both separate and marital property. These financial disclosures come in the form of a Schedule of Assets and Debts, an Income and Expense Declaration, and filed tax returns.
However, oftentimes these financial disclosures do not give the full picture of each asset’s value and how the value may have fluctuated over prior years. Perhaps the accompanying retirement or bank account statement you receive from your spouse shows a much lower value than what you had anticipated. Or in more complex matters, you wish to learn more about how much your spouse’s business earned over the years.
When this happens and your spouse’s financial information raises more questions than answers, you may pursue written discovery. Written discovery can take on several different forms, depending on the information you are seeking.
If you are requesting documentary evidence – financial statements, loan agreements/applications, business entity documentation, employment agreements, paystubs, W-2s, and more – a Demand for Production of Documents can accomplish this.
If you are seeking answers to very specific and detailed questions that do not require accompanying documentation, Special Interrogatories may be used. If you wish to get your spouse to admit to specific issues, a Request for Admission is appropriate.
There are other ways to obtain information about your spouse’s income or assets, such as a subpoena for business records. These are issued to the entity from which you are seeking documentation directly, with notice to your spouse.
If the information you are seeking from the opposing party is more complex or nuanced, you may want to consider taking their deposition so that you may obtain their oral testimony (provided under oath) that can be used later on at the time of trial. You may also depose third party witnesses for the same purpose.
All of these avenues of discovery sound helpful and useful, and they are–when the other side participates and provides full responses. But suppose your spouse refuses to comply with the divorce discovery process or they serve incomplete or evasive responses. What are you left to do then?
Below are enforcement options available to a party seeking a response or further response from another party or witness in a divorce case.
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 a divorce discovery request 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 the 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 if the opposing party did not cooperate with the divorce discovery process. If the requesting party does not attempt to resolve the issue outside of court, it too could be exposed to monetary sanctions.
Some of the methods mentioned above–a subpoena served directly to the entity for business records or a deposition of your spouse–may serve as alternative methods to the Motion to Compel avenue. If you are requesting bank statements from your spouse from a specified timeframe and they only partially comply or simply do not comply at all, and you know what bank(s) your spouse uses, then subpoena(s) to that entity or those entities may offer a less time consuming method that foregoes court intervention.
Likewise, if you propound Special Interrogatories or Requests for Admission and your spouse fails to comply, then a deposition seeking their oral testimony could cure any defects in their written responses.
However, should you choose to pursue a Motion to Compel and the Court grants your motion 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
Using a discovery method in a manner that does not comply with its specified procedures
Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense
If discovery abuse is determined to exist, then the court may relieve the other party from responding to it.
It is equally important to remember that not everything is discoverable in a divorce case. The information or documentation you are seeking has to be reasonably calculated to lead to the discovery of admissible evidence, or relevant to your divorce proceedings.
For instance, if your marriage lasted between the years of 2015 and 2023 and your spouse is requesting bank statements stretching back to 2010, you may wish to object to statements that fall within the years prior to the marriage beginning, as they are likely not relevant to the divorce proceedings.
Other sorts of information that are considered “off limits” are information or documentation protected by a certain type of privilege between the responding party and their attorney, their physician, their psychotherapist, clergyman, etc.
If your spouse propounds a Demand for Production of Documents seeking sensitive medical records, you may wish to consider objecting on the basis of the physician-patient privilege. Alternatively, if your medical status is at issue in your divorce case, you may wish to consider a protective order that would work to limit the dissemination and use of the information sought.
If you are seeking divorce discovery responses from your spouse or are struggling with how to respond to discovery propounded upon you, Cage & Miles is here to assist you. Contact Cage & Miles today for a free consultation.