Discovery is the process where each side of a case is able to have the other side answer questions in writing, provide documents, responses to requests, to make admissions and/or to sit down in person, under oath, and answer questions.  What are the boundaries concerning the questions that can be asked?  Essentially, anything that is marginally relevant to your case is on the table.  Is this invasive of your privacy?  Yes, and it would be best for you to assume that as long as you have a divorce case pending you have no privacy.  There are exceptions in the form of objections that can be raised to certain requests for answers, documents, admissions, etc., but most of your objections will not be legally acceptable objections.  Most of the objections that I hear to discovery requests can pretty much be characterized as follows: “I don’t want to give this to them.”  That is not going to work.  I would like for you to draw the following conclusion from this article: You will likely have to give an answer to the questions they ask, and you will likely have to provide the documents they request.  Because, unless your objection falls into one of the following main categories, you will likely have to give up the answer or documents:

·      Unduly Burdensome/Oppressive – Discovery is burdensome as a rule.  So, what is unduly burdensome?  Real world example: “Provide a copy of all text messages or other written communications in which you have discussed, mentioned or that pertain to the minor children for the past 36 months.”  This is ridiculous because it means that anytime you have even mentioned your children to a friend, colleague or family member, sent a photograph to one of them or had the most nonchalant conversation concerning your kids, you would be expected to dig up that conversation and provide a copy of the message.  That could take days of searching and I would make the argument that it is unduly burdensome.  It would also fit within the next objection.

·      Overly broad – The prior example was arguably also overly broad in that it encompassed all the meaningless communications with friends, colleagues and family members to whom you sent a cute picture of the children. The following request would be legitimate: “Provide a copy of all text messages or other written communications with any of the children’s teachers in which you have discussed, mentioned or that pertain to the minor children for the past 36 months.”

·      Vague/Ambiguous – If the request is unclear regarding what needs to be produced, then it can be objectionable.  Real world example: “Provide a copy of all documents pertaining to your fitness as a parent.”  What does that even mean?

·      Documents not in your care, custody or control/other party has this document or the same access as you – To make this objection you will need to show not only that you do not have this document in your possession, but that you cannot get a copy.  For instance, you may not have your tax return for 2020, but you can request it.  You may not have all your bank account statements, but you can request them.  You can also show that the other party already has access to this.  For instance, a joint tax return can be requested by either party, so they can acquire it for themselves rather than making you do the legwork for them.

·      Protected by Attorney/Client privilege, Doctor/Patient privilege, other privileges, and Attorney work product – If we are talking attorney/client privilege, you are likely not going to have to respond.  Other privileges exist, but they may be outweighed by the Court’s need for the information.  This is particular true concerning doctor/patient privilege when a parent’s fitness for custody is being considered, or when a party is claiming they cannot work due to medical conditions. 

·      Imposed for an improper purpose such as harassment or to drive up the cost of litigation – This objection is applicable if you can show that the requests were made just to harass you and/or cost you more money.  While this has obviously happened in the past, this is a high bar.  You are going to have to show something that appears to the Court to be beyond the pale here, and that is a tall task in discovery.

·      Not reasonably calculated to lead to discoverable information – This is basically a relevance objection.  They can request an answer or a document that is relevant or reasonably calculated to lead to something relevant.  So, if you can show that the document is just totally irrelevant then you may not have to respond.  An example of this: “State how many times per week you and your (new) spouse engage in sexual relations?”  This would also trigger the preceding objection.

It is important to note that if you object to a discovery request, and the other side files a motion to compel you to respond and the Court orders you to respond, you are likely to be required to pay your opponent’s attorney’s fees for making them go to the Court to make you respond.  This is why you are likely to hear from me that it is better err on the side of responding unless the grounds for objection are clear.

Types of Discovery Requests:

Interrogatories

Interrogatories are questions that you will be required to give your own written answer to.  Each side can issue up to 50 questions (or more with leave of the Court) that you will be required to provide a written answer to within 30 days (or 60 days if you get an extension of time).  You are only required to provide your own succinct answer to what is supposed to be a succinct question.  You cannot be required to answer a question in any particular way, so long as your answer is legitimately an answer to the question asked.

Request for Production of Documents

 There is no limit to the number of requests for production of documents.  This is usually the most taxing part of the discovery process.  It is good to get started gathering the requested documents early so that the deadline does not creep up on you.  Keep in mind, many of the documents that are routinely requested through discovery are documents that your attorney would ask you to provide (to help with your case), and your paralegals just love pestering you to provide your documents… kidding obviously.  However, if you drag your feet providing documents requested through discovery, they are going to have pester you, and will have to bill you for the time spent doing so.  So, you can do yourself a favor financially by making their jobs just a bit easier by getting on top of these document requests promptly.

Requests for Admissions

Each side is entitled to issue an unlimited number of requests for the other side to admit to certain factual statements.  It is very important to respond to these in a timely fashion because if you miss the deadline to respond (30 days, or 60 if you get an extension), then you are deemed to have admitted the statement that the other side made.  This could be fatal to the goals of your case.  So, you need to get your answers ready for these immediately.

Depositions

Either side may schedule a deposition where you have to sit down and be questioned by the other attorney under oath.  The answers given during the deposition can be used at trial.  It should be obvious that this requires careful preparation with your lawyer.  Cases are sometimes won and lost during depositions.