What is Discovery?
“Do I really have to give her all my bank records, tax returns, and other financial information?”
This is a question family law attorneys hear all the time. If you are in the midst of a custody case or a divorce case, you are probably already familiar with the term “discovery”. It is a term you should be familiar with before entering into the litigation.
“Discovery” is a set of rules and tools that allow each side of a case to discover facts about the other side’s case so that we do not have a “trial by surprise.” There are many tools to be used in “discovery.” Let’s cover some of the most common:
- Interrogatories – These are written questions that allow the attorney for one side of a case to ask the party of the other side to answer providing facts that are relevant to the case. For example, in a divorce case, one of the questions may be for the party to list all of the reasons that lead to separation. The Rules of the Virginia Supreme Court allow an attorney (or a party representing him or herself) to ask up to 30 of these questions.
- Requests for Production of Documents – These are a listing of documents that one side is requesting from the other. In divorce cases, often a multitude of financial records are requested. Sometimes medical records of the spouse and children are requested. If a record is sensitive or otherwise should have some additional protection, a protective order can be entered to govern who may view the records, that the records should be destroyed when the litigation is completed and other protections that may be necessary.
- Depositions – A deposition is a time when one party of the case, usually through an attorney, can require the other party in the case to appear at a specific date and time to answer verbal questions relevant to the case. The party being deposed is required to answer the questions under oath with a court reporter present. This provides the party taking the deposition an opportunity to further discover facts about the other party’s case and is usually done closer to a trial date. Written discovery discussed above is usually done at the inception of a case.
There are other tools that can be used, but they happen less often. Pay close attention when you receive something called Requests for Admissions. They are just what they sound like – a request for a party to admit a certain fact for purposes of the case at hand.
“Discovery” can seem intimidating. It can be overwhelming. It seems almost offensive at first with the very invasive nature of the questions and the volume of the information and documents being requested. Unfortunately, it is a part of litigation. The best thing we can tell you is if you intend to take a step forward with divorce or custody or any other litigation, prepare yourself for this process. Remaining organized will help. Staying organized when you communicate your answers to your attorney will also help.
If you are in doubt, you should reach out to your attorney to help you.
Failure to respond to discovery can be detrimental to your case. One of the worst things that you can do is put your head in the sand and ignore answering discovery. We won’t let that happen to our clients at Phillips & Peters. Even when it’s hard we are committed to helping you move forward.