Discovery in a Family Law Case

Sep 16

Discovery in a Family Law Case

Discovery in a Family Law Case

In any type of lawsuit, including a divorce or custody case, it is typical for the parties to exchange discovery. Discovery is a formal process that involves the parties exchanging information regarding evidence that supports his/her claims and defenses in the case. Discovery typically comes in three forms:

  • Request for Disclosure – Standard questions are asked regarding potential parties, witnesses that may be called to testify at trial, experts used, etc. The requested information must be disclosed upon request without objection.
  • Request for Production – The party sends requests for specific documents and other potential evidence from the other party.
  • Interrogatories – Formal questions to the other party must be answered under oath (25 maximum unless modified).

The purpose of discovery is to ascertain the other side’s positions and gather the information to defend against opposing claims and/or support your claims. Discovery is often conducted as one of the first Five Steps in Every Case. In most situations, discovery requests must be responded to within 30 days of the request (unless they are untimely sent). 

Discovery can be tedious and time-consuming. However, if a party does not respond to discovery or fails to respond adequately, the court can issue several remedies, increasing in severity. According to Rule 215.2 of the Texas Rules of Civil Procedure, if a party fails to comply with a proper discovery request:

The court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;(3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party of expenses unjust…

Furthermore, in addition to the punishments listed above, if a party fails to timely respond to a proper discovery request, non-responding parties may not introduce evidence at trial, material, or information that was not timely disclosed. Tex. R. Civ. P. 193.6. 

Discovery is an essential part of litigation. For those seeking information, the discovery provides a process to ascertain the needed information. It is crucial for those from whom information is requested that a proper response is given, or the consequences could be detrimental.

Types of Discovery

Request for Disclosure

A request for disclosure is just what it sounds like – it is a request from the other side for you to disclose information about your lawsuit. A request for disclosure is governed by Rule 194.1 and 194.2 of the Texas Rules of Civil Procedure:

194.1 Request.

A party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party – no later than 30 days before the end of any applicable discovery period – the following request: “Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g)].”

194.2 Content.

A party may request disclosure of any or all of the following:

(a) the correct names of the parties to the lawsuit;(b) the name, address, and telephone number of any potential parties;(c) the legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial);(d) the amount and any method of calculating economic damages;(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;(f) for any testifying expert:(1) the expert’s name, address, and telephone number;(2) the subject matter on which the expert will testify;(3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and(B) the expert’s current resume and bibliography;(g) any indemnity and insuring agreements described in Rule 192.3(f);(h) any settlement agreements described in Rule 192.3(g);(i) any witness statements described in Rule 192.3(h);(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;(k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party;(l) the name, address, and telephone number of any person who may be designated as a responsible third party.

The primary purpose of a request for disclosure in a family law case is to identify persons with relevant knowledge (e.g., witnesses) and disclose experts (e.g., appraisers, psychologists, custody evaluators, etc.). Typically, the attorneys handle the expert response, but the client provides persons with relevant knowledge. Typical persons with relevant knowledge are:

  • School teachers
  • Marriage counselor
  • Doctors
  • Neighbors
  • Family members
  • Business partners
  • Police officers
  • CPS caseworker
  • Personal counselor/therapist
  • School principal
  • CPA
  • Bookkeeper

Request for Production

A Request for Production is a request for the party to produce documents that are relevant to the case. Rule 196.1 of the Texas Rules of Civil Procedure states:

196.1 Request for Production and Inspection to Parties. 

(a) Request. A party may serve on another party–no later than 30 days before the end of the discovery period–a request for production or for inspection, to inspect, sample, test, photograph, and copy documents or tangible things within the scope of discovery.

A Request for Production can be, and often is, EXTREMELY overwhelming. Often more is asked for than what is needed. It is easier to over-ask for information and receive less than to under-ask and beg for more. So, while it seems like a lot, the client will often not be gathering every document requested.

Typical documents requested and provided in a divorce include:

  • Monthly bank statements from every bank account in a party’s name for the last 24 months
  • Monthly financial statements from every retirement account in a party’s name for the last 24 months
  • Monthly financial statements from every brokerage account or any other financial account in a party’s name for the last 24 months
  • Monthly statements from every credit card in a party’s name for the last 24 months
  • A party’s current mortgage statement showing how much is owed on your house
  • A party’s current credit report
  • Any life insurance policies
  • Personal tax returns for the last three tax years
  • A current pay stub 
  • Any recordings that are relevant 
  • Any texts/emails/letters that are relevant 
  • Any photographs that you think are relevant or that you intend to use in the trial
  • ADDITIONAL DOCUMENTS TO GATHER IF CHILDREN ARE INVOLVED:
    • A party’s child’s report card for this school year and the prior school year
    • Any emails/texts with the child’s teachers and/or therapists
  • ADDITIONAL DOCUMENTS TO GATHER IF YOU OWN A BUSINESS:
    • Business tax returns for the last three tax years
    • Any incorporating documents (e.g., LLC Membership Agreement; Shareholder’s Agreement)
    • Year to the Date P&L statement
    • End of Year P&L statement from the prior year
    • Aging AR balance
    • Monthly bank statements from any account in the business’ name for the last 24 months
    • Monthly credit card statements from any account in the business’ name for the last 24 months

If the case is just about children (e.g., original suit affecting the parent-child relationship; modification suit), typical documents requested are:

  • Personal tax returns for the last three tax years
  • A current pay stub 
  • Any recordings that are relevant 
  • Any texts/emails/letters that are relevant 
  • Any photographs that are relevant 
  • The child’s report card for this school year and the prior school year
  • Any emails/texts with your child’s teachers and/or therapists

Interrogatories

An Interrogatory is a question that the client to answer under oath. Rule 197.1 of the Texas Rules of Civil Procedure states:

197.1 Interrogatories. 

A party may serve on another party – no later than 30 days before the end of the discovery period -written interrogatories to inquire about any matter within the scope of discovery except matters covered by Rule 195. An interrogatory may inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses, but interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial.

These questions will most likely seem overwhelming and overly invasive. Although it is not always necessary to respond in a manner that “marshals” all available evidence, it is important that enough information is provided to be considered responsive to the question and provide the opposing side an opportunity to understand the party’s positions.

Here are some common interrogatories in family law cases:

Questions in a Divorce:

Question: Who is responsible for the breakup in the marriage? In other words, why do you think the marriage ended and who is at fault? 

Question: Do you own any property that you owned before marriage, that you inherited, that was gifted to you, and/or was received for a personal injury settlement for pain and suffering? 

Question: Do you allege that your spouse has ever abused you? State how and when:

Question: Have you ever had sexual contact with someone other than your spouse during your marriage? Do you allege your spouse has had sexual contact with someone other than you during the marriage? 

Questions for Any Case with Children:

Question: Who should have custody of the child/ren? Why? 

Question: What possession schedule should the other parent have with the child/ren. Why?

Question: Should there be a geographic restriction with regard to where the child/ren lives? If so, where and why? 

Question: Have you ever used any illegal drugs? Prescription drugs without a valid prescription? Has the other parent? 

Question: Has the other parent ever physically and/or emotionally abused you and/or the child/ren? If so, when and how? 

Question: Has the other parent made any decisions about the child/ren that you disagree with? List those decisions and why you disagreed. 

In addition to the above three types of discovery, family law cases sometimes but not often also have requests for admission.

Request for Admission

Less commonly used, but at times appropriate, a party can send a request for admission. The requests ask the opposing party to admit or deny certain facts. Rule 198.1 of the Texas Rules of Civil Procedure states:

Rule 198. Requests for Admissions

198.1 Request for Admissions. A party may serve on another party – no later than 30 days before the end of the discovery period -written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Each matter for which an admission is requested must be stated separately.

 

Most importantly about admissions – a failure to timely answer the questions will deem the response admitted. Rule 198.2(c) of the Texas Rules of Civil Procedure states, “If a response [to request for admission] is not timely served, the request is considered admitted without the necessity of a court order.” Because of this rule, failure to respond could potentially be devastating to a case.

Conclusion

Discovery can often be overwhelming. It is particularly overwhelming if an attorney does not provide proper guidance through the process. Although tedious, discovery is a vital part of a lawsuit. Great care should go into both requesting discovery and responding to discovery. Failure to exercise proper care could be detrimental to a case and, at times, fatal to your case. 

To learn more about discovery, watch the Walters Gilbreath YouTube video on discovery.

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