During the course of a divorce case, it is common to perform legal investigation, which is also known as the "discovery" process. Discovery requests include document demands, interrogatories (written questions), requests for admission, and depositions (oral questions and responses that are recorded in a written transcript).
Under certain circumstances, pursuant to the Code of Civil Procedure, the court can make a protective order to control burdensome, unreasonable or oppressive discovery requests.
There are a number of ways that protective orders can limit discovery, including narrowing the scope of discovery, limiting the dissemination and use of information produced, and limiting the particular type of discovery request.
According to Code of Civil Procedure section 2017.020, the court can limit the scope of discovery requests if it finds that the “burden, expense, or intrusiveness . . . clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”
Pursuant to Code of Civil Procedure section 2019.030, the court may limit the number of requests, the frequency of requests, or the extent of such requests if the discovery requests: (a) are “unreasonably cumulative or duplicative”; (b) can be obtained from another more convenient, less burdensome or less expensive source; or (c) the discovery requests are unduly burdensome or expensive in light of the case, amount in controversy, and importance of the issues.
For example, if the party seeking discovery asks for all your bank statements dating back two decades and your case does not involve financial issues such as spousal and child support or a property division, such a request could be deemed unduly burdensome.
Additionally, when discovery requests infringe on your privacy rights, a motion for protective order may be warranted. In fact, you have a presumptive right to a protective order that limits disclosure of information to purposes and persons related to the litigation; in other words, the information you provide in discovery cannot be distributed for purposes unrelated to resolution of the litigation.
For example, if your spouse demands all documents related to a bankruptcy filing you made several years ago and you have reason to believe your ex intends to distribute those documents to your employer, the court may issue a protective order.
The court may make protective orders “as justice requires” to protect you from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” This catch-all clause is helpful to protect you in a variety of circumstances.
For example, discovery of privileged matters is not permitted. In the discovery context, the term “privileged” refers to constitutional and statutory privileges, including the attorney-client privilege, spousal communication privilege, clergy-penitent privilege, physician-patient privilege, and assault victim-counselor privilege. Therefore, in a post-judgment case involving modification of child custody, you could not compel your ex’s new spouse to be deposed as a witness.
Please be aware that before the court will issue a protective order, it will require that you “meet and confer” with the opposing side. According to the California Code of Civil Procedure, you (or your attorney) must make a “reasonable and good faith attempt” to solve the issues without the court’s assistance.
Further, the court must impose a monetary sanction against anyone who unsuccessfully makes or opposes a motion for a protective order, unless it finds that person acted with substantial justification or other circumstances make the imposition of a sanction unjust. Therefore, it is important to attempt settlement of discovery issues outside of court and to only request a protective order if necessary.
If you are overwhelmed with harassing, burdensome discovery requests, you may be able to obtain a protective order. To discuss your options for limiting discovery and protecting your privacy rights, contact Cage & Miles, LLP today for a free consultation.