Many of my clients’ eyes glaze over when I say we may need DISCOVERY in a divorce or a custody matter. Maybe they hear dollar signs, or perhaps they just think that this word is an overly complicated legal term for “gathering information.”
Discovery is fairly simple and extremely valuable if used appropriately. If you need more information about the children, the estate (including assets and debts), or elaboration about the allegations in the pleadings, then your attorney can send over requests under Texas Rules of Civil Procedure 194 to obtain some valuable facts about your case.
There are four major types of discovery categories: written discovery; depositions; inventory and appraisements; and subpoenas. There is no “one size fits all” approach for every case with regard to discovery. I personally do not serve written discovery in every case. However, I always consider it as a tool, and thoroughly weigh the benefits of the four types of discovery against the cost of serving it.
- Written Discovery: Under the Rules of Procedure, you can serve discovery up to 60 days before trial. All the discovery requests described below are due 30 days from the date of service upon the other side:
- Request for Disclosure– This is a type of written discovery that asks to name the parties, requests the identification of “persons with knowledge of relevant facts” (i.e. witnesses for trial), the legal theories and affirmative defenses for trial, and asks to reveal the experts who will be used in the case (as well as what information they used to form their opinions). A Request for Disclosures is an affordable and easy document to serve upon filing to ensure that, if the case goes to trial, you know who the witnesses will be and whether expert testimony will be presented. There is a required template within the Rules of Procedure, so every Request for Disclosures will be the same.
- Interrogatories– These are limited to 25 questions. You may ask the opposing party in writing about subjects such as what hours they work, when they want access to the children, and other relevant questions (such as how the party believes the estate should be divided and why). Interrogatories must be verified or signed under oath with a notary present. This ensures that the other party must answer them as if they were on the witness stand in court.
- Request for Production– This is a useful tool to obtain documents such as bank records, medical records, financial documentation, school records, etc. There is no limit to the number of Requests for Production, but they must be relevant in time/scope and the other party must have reasonable access to the document requested. If my client is the spouse who did not manage the finances or the children’s school and medical issues, then I believe that Requests for Production are essential. Also, if you go to trial, properly answering Requests for Production is critical so that you are not limited in the documents that you can introduce at trial. If you don’t produce a document in the discovery response, you may be barred from using it at trial. Therefore, you need to pay attention to all of the questions served upon you prior to trail so that you can avoid having the opposing party strike your exhibits at trial or otherwise hamstring your case.
- Request for Admissions– This is a valuable way to ensure that the opposing party answers the other discovery requests in a timely fashion. Every question begins with “Admit or Deny” that ____. So, if you want your spouse to admit that she drinks 4 glasses of wine per night, your attorney asks, “Admit or Deny that ______ drinks 4 glasses of wine a night.” If her lawyer fails to respond to the list of Requests for Admissions within 30 days, then her answer is assumed to be YES or ADMIT. Then, at trial, your attorney can read the admissions into the record as if your spouse herself were admitting to all of the items that you asked her about.
- Depositions: These are oral testimonies that attorneys are authorized to take from parties in the case or persons with knowledge of relevant facts (i.e. witnesses and experts). The deponent (i.e. the party in the “hot seat”) sits at the head of a table next to the stenographer along with the opposing counsel. The deponent answers a series of questions that may or may not be relevant or objectionable. When you are the deponent, your lawyer is there to object as to “form” according to the scope of the questions. A deposition may be served at any time and must be quashed (objected to within three days of service). A deposition may last up to six hours and usually is recorded by a stenographer, who types the sworn testimony into a transcript. This discovery tool is useful for complex cases or high-conflict cases. Depositions function to get witnesses and parties to commit to their testimony so that there are no surprises at trial. And if there are surprises, your attorney can impeach — or show the court that the witness is not credible — by comparing the depositions testimony versus the trial testimony.
- Inventory and Appraisements: Inventories are lists of all assets in debts in detail. They are verified, or notarized. These lists are filed with the court and function as a roadmap to the division of the estate. Inventories, while not required, are integral to property cases. Attorneys use them at mediation, settlement out-of-court and at trial. Ideally, a good inventory has current values to every bank account, investment accounts, including brokerage, IRAs/401k’s, real property, airline miles, health savings accounts, pensions and business interests. Conversely, lists of debt are included on inventories which list lines of credit, consumer debt from credit cards with detailed account information, and loans existing on mortgage, vehicles or other secured assets. You can request an inventory in any case involving property. They are due upon agreement or order by the Court.
- Subpoenas: There are two types of subpoenas: trial subpoenas to ask a witness to come to trial/hearing and subpoenas strictly to obtain records to present at trial. A hybrid is a subpoena duces tecum, which asks a witness to come and bring documents to trial or hearing. This is a valuable way to obtain CPS documents, mental health or counseling records, employment records for purposes of establishing salary for child support, and other documents such as police records/reports for presentation at Temporary Orders or trial. The other type of subpoena is strictly to compel the custodian of record (i.e. third parties who are the sole holder of your valuable documents that you need) to produce documents that you need to file with the Court in order to establish the facts of your case. Subpoenas must be served in a timely fashion, which is defined by case law as “adequate notice.”
Discovery ultimately is a process of information gathering. The deeper you dig, the more information you get about the pertinent issues in your case. You will gain more knowledge in a tailor-made fashion regarding a) the assets and debts in a marital estate, b) the income of the other spouse and the issues surrounding custody of the children, c) allegations of bad conduct by one party, d) the theory of the case, and e) potential witnesses at trial, including information regarding experts.
As there is no one-size-fits-all discovery, instruct your attorney about what you hope to gain from the discovery and utilize your resources to direct the questions in a narrow focus to obtain the answer within the scope of relevant issues of your case. As a client, you are the best resource to identify what you need to know. If you don’t know what “you don’t know,” however, ask your attorney for guidance in the discovery process. Follow the above outline to ascertain what information gaps you have and to determine what information that you need to develop your case for trial.
Discovery is simply a tool in your attorney’s toolbox that they can bring to your trial/hearing as a way to put the necessary facts before the judge so that that you have the best chance to gain a fair and equitable division of the estate and/or a parenting plan that is in the best interests of the children in the case.