Getting Divorced: What is Discovery?

Discovery is a process involving the exchange of documents, information, and other potential evidence between parties to a lawsuit. This exchange requires evidence supporting your claims and defenses in the case and evidence supporting the other party’s claims and defenses. In Texas, we have open discovery, which means both sides are expected to turn over all of his or her evidence well before trial. The idea behind it is if both parties have access to the same information, then those parties will likely find their way to a reasonable settlement before trial. This also means the drama and excitement you see in movies and television shows about finding the missing piece of evidence at the last minute to solve the case usually doesn’t happen in real life. However, discovery is still vitally important to your case. In our experience, the side which is better prepared and more organized usually ends up better off in the end, whether that is in settlement negotiations or at trial.

What is “Discoverable”?

Be prepared for a full and invasive exam of everything relevant in your life during your marriage or since the child’s birth. There are plenty of things that could be relevant including:

• Your bank statements
• Phone records
• Text messages
• Journals
• Title to your vehicles
• Copies of checks
• Social network accounts
• Receipts for some of certain purchases could be relevant to the litigation

What is relevant will depend on the issues at hand and the accusations made by one, either, or both parties.

There really is nothing that is off-limits, except maybe a few private medical details (and most of those are fair game). This is largely true even in a non-divorce child custody matter. The other party may be entitled to get details and documentation regarding your:

• Finances (tax returns, debts, business records, credit reports, bank statements, etc.);
• Communication (emails, text messages, IM messages, phone records, social media accounts (i.e. Facebook posts), etc.));
• Your Medical History (mental treatment & issues, substance abuse issues, anything that may impact custody of a child;
• Sexual Behavior (Sexual Preferences, Unusual Practices, Affairs, Paramour(s));
• Parenting Skills (anyone’s parenting skills that will be in physical possession or have access to a child; and even
• Relationships (your family, friends, co-workers, neighbors, employers, etc.).

When considering the information that is discoverable, the list goes on.

It can be pretty horrible for example:

• Your grandmother may get deposed, and the other lawyer may ask her some embarrassing or personal questions about you.
• Your work emails may be subpoenaed.
• Your next-door neighbor may be forced to testify about you in court.
• Your doctor may be forced to testify about your treatment for depression.

What to do if You’re Served With Discovery Requests

When the other side serves you with discovery requests, the responses will be due within 30 days of being served with the requests. Your lawyer should notify you promptly when they receive discovery requests in your case to get started working on it. Discovery may seem like a lot at first, but it is prevalent, and a great lawyer will work with you to gather documents, organize responses, and get your case prepared for the next steps.

Hiding Things in Discovery

People do get away with lying and hiding things in Court, even with Discovery being conducted. But, a good lawyer with a proper budget can usually minimize this. Even worse, if you are caught lying/hiding things during Discovery, the consequences are severe. Most people are better off just being open and taking their lumps.