Discovery

In a divorce case, “discovery” is the process by which the parties and their attorneys gather information and documents relating to the issues in the case in preparation for settlement, mediation, or trial. If the parties want to attempt informal settlement negotiations, it is still important to conduct some discovery to help develop a just and fair settlement outside of court. For example, discovery is used to find out how much a spouse has in his or her 401(k) retirement plan, whether any part was owned before marriage, and whether there have been loans or withdrawals taken from the account during the marriage. This information is necessary to determine what a fair settlement would be, but only one spouse has access to this information. Discovery requires both sides to “put their cards on the table” and exchange information so that the attorneys and spouses can decide what a fair settlement would be.

Discovery also provides important information such as who witnesses will be for trial.

The discovery process involves deadlines which cannot be ignored. In most cases, responses to discovery are due within 30 days of the request being served on the attorney. Client must take the time to do the work to find or order documents, compile lists and write answers so that deadlines are not missed.

Most attorneys will provide the client an e-mail link to a program which clients can use to upload their discovery documents. Sometimes, clients only have physical copies of their documents and may need to bring those to the lawyer’s office.

Enos Family Law sends its clients an email containing a link for ShareFile which allows clients to confidentially upload files (many at once) to a ShareFile folder the law firm has assigned to that client.

These are the instructions Enos Family Law gives its clients:

• If producing documents electronically, ensure that all files are correctly labeled and in a way that keeps them sorted by date. If possible, combine all related documents into one mass PDF. For example, combine all sorted bank statements relating to a particular account into one PDF. Do not have documents in a random order. If we have to sort through them, that will cost you more money. Make sure all documents are accessible and are not password protected. If possible, only produce files as a PDF.
• If producing documents physically, ensure that all documents are organized chronologically and labeled. Do not bring us a box full of random papers for us to organize for you and do not give original, crumpled, illegible receipts for us to sort and copy. We will have to sort them for you and this will cost you more money.
• If the client feels the need to clarify what a document is, then on a separate sheet or document, the client may list notes they want us to see. The notes need to be separate so that we don’t accidentally give them to the opposing party. The client should not write on any documents, or put sticky notes on any documents.

Failure to answer discovery fully and on time can harm the case, so the client should work diligently to get discovery requests answered. If a party does not respond to discovery requests, the other side can ask the Court to force them to answer the questions or produce the documents. The Court may, and probably will, order the party to answer the question or produce the documents, as well as pay attorney’s fees and sanctions to the opposing attorney and party. This may make the Court angry and they will probably remember the offending party as being “difficult” the next time that they go back to court for a hearing. A dispute over discovery will also cost the client money, since it will take more of our time and we bill for our time.

Sometimes, a lawyer will withdraw from a case if the client does not cooperate with discovery requests, for two reasons: (1) the lawyer cannot help the client win if the client turns the Court against them, and (2) lawyers value our time far too much to fight trivial discovery battles, when we should be focusing on serious legal matters.

Also, if the client fails to produce a photograph, for example, then they cannot use that photo at the trial or at any other hearing. If the client fails to name a neighbor, for example, as a “person with knowledge of relevant facts” or leaves out his phone number, we cannot call that person as a witness at the final trial. Hence, answering questions now are critical to the presentation of the case later.

No one can provide this information except the client. The attorney does not know the names of the client’s friends and family, and does not possess the client’s documents. The client must thoroughly prepare these answers themselves.

Often, the attorneys on a case agree in writing to exchange financial documents instead of conducting formal discovery to speed things and up and keep costs down. Ask your lawyer if this is an option in your case.

A party may request the other party disclose:

• Names, addresses, and phone numbers for any parties or potential parties to the lawsuit;
• Legal theories and facts that support the party’s claims;
• Names, addresses, and phone numbers for anyone with knowledge of information relevant to the case with a brief explanation of each person’s connection to the case
• Information on testifying experts; An expert witness might be a psychologist, real estate appraiser, pediatrician, business valuator or accountant who traced separate property.

Once a Request for Disclosure has been served upon a party’s attorney, that party has 30 days in which they must respond with their answers to the requesting party. If an answer requires documents, the party must also provide copies of any requested documents and other tangible items.

“Requests for Production” allow a party to ask the other party to turn over or make available for inspection and copying any documents or items that are within the scope of discovery.

For example, a request for production could ask for: “ All credit card, loan, mortgage, and lines of credit statements, including annual summaries, since January 1, 2023.”

Time Period

Requests for production are for documents or items you intend to use at trial regardless of the date of the document and otherwise for documents prepared, received, or generated since a specific date. In most divorce cases, attorneys only go back two or three years for past statements and documents, but sometimes older documents are requested. Your attorney may object if the request seeks documents that are too old or which are not related to the issues in your case. If an objection is made, you may not have to answer that request until the judge decides what must be turned over.

In most divorces, these financial documents are almost always requested and exchanged:

• Bank Statements – All statements related to bank, savings and loans, credit union, brokerage house, or another financial accounts on which you have or have had signature authority including but not limited to any business account(s) of any business owned by you.
• Earnings Records – All books, records, documents and instruments pertaining to monies earned or received by you from any source, including, but not limited to, wages, salary, regular time earned, overtime earned, bonuses, contract labor, commissions, dividends, interest, proceeds from sale of property and gifts, accounts receivable collections and retainers, IRA distributions, annuities, rents, royalties, partnerships, estates, trusts, and unemployment compensations; including but not limited to, payroll statements, W-2 forms, and 1099 forms.
• Debts – All records of indebtedness by you, whether individually or with any other person or business in which you own together with any records of such indebtedness, including without limitation, all detailed and itemized charge card statements and charge receipts, promissory notes, creditor’s statements, and any other notes, bills, statements and invoices evidencing debts and charges incurred and payments made on account.
• Secured Debts – All debts or liens against any property owned by you, whether individually or with any other person including mortgage documents, liens, debts, notes, pending or expected claims against said property, money borrowed against said property and the like.
• Federal and State Income Tax Communications – All communications to and from the Internal Revenue Service, including any business in which you claim an ownership, and including any letters of deficiencies of tax obligations of the parties regardless of year.
• Federal and State Income Tax Returns – All federal and state income-reporting documents, including tax returns with all schedules and amendments, whether personal or business for you, or for any entity in which the parties own or claim, or have owned or claimed, any interest.

Responses to Requests for Production must be served on the requesting party within 30 days after the requests were served. The responses may include objections and assertions of privilege, and then must state one of the following:

• (1) production, inspection, or other requested action will be permitted as requested;
• (2) the requested items are being served on the requesting party with the response;
• (3) production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or
• (4) no items have been identified—after a diligent search and additional discovery—that are responsive to the request.

Subject to any objections included in the response, the responding party MUST produce any requested documents or items that are in his or her possession, custody, or control at the time and place requested or the time and place stated in the response. A responding party does not have to produce the originals of any requested documents; copies are allowed. Documents produced must be delivered in an organized and labeled fashion, or in the way they are kept in the usual course of business. Usually, documents are produced electronically in PDF format. There is no limit to the number of Requests for Production that may be served throughout the divorce discovery process.

“Interrogatories” are questions that inquire about any matter within the scope of the discovery phase that is relevant to the subject matter or issues involved in the divorce case. An example of an interrogatory is:

If you contend your spouse committed adultery or mental cruelty or physical or emotional abuse or was in any other way at fault in the break-up of the marriage, state each fact that is known to you or reported to you by others (and the names of those other reporting persons) that supports your contention and state the date and location when and where each wrongful act occurred and the persons who were witnesses to, or have knowledge of, each such wrongful act.

ANSWER:

A requesting party is limited to asking 25 Interrogatories total, although these may be split up into smaller amounts in different sets of discovery. After being served with Interrogatories, the responding party must serve a written response on the requesting party within 30 days. The discovery responses must include answers to the Interrogatories and may include objections and assertions of privilege, and also must be signed under oath by the responding party.

“Requests for Admission” are just that: written requests that ask the other party to admit or deny the truth of any matter that falls within the scope of discovery in divorce cases in Texas. The Requests for Admission may include statements of opinions or of facts, or the genuineness of any documents served with the formal request or otherwise made available. The responding party must serve the requesting party with the response within 30 days after the formal requests were initially served.

In response to Requests for Admissions, a party may only “admit” or “deny” the statement that is presented. There is no limit in the discovery rules as to the number of Requests for Admission that may be served.

Examples of request for admissions are:

Admit or deny that your husband owned his 1987 Chevrolet C10 truck prior to your marriage.

Admit or deny that during the marriage you used Adderall without a prescription.

Requests for Admissions are rarely used in family cases.

In a few family cases, a deposition is taken of a witness or a party.

A “deposition” is when one party takes the sworn testimony of any person or entity by oral examination in front of any officer authorized by law to take depositions. The testimony, objections, and any other statements made during a deposition are recorded by a court reporter or by some electronic means. Most depositions take place in lawyers’ offices but sometimes they are done via Zoom.

Your lawyer will meet with you and prepare you to answer questions if your deposition is scheduled. A deposition may uncover useful information, but they can be expensive. A four-hour deposition could cost each side over $3,000. Examples of testimony as a deposition follow:

In a lawsuit, a “party” is one of the persons suing, being sued, or countersued. So, in a divorce, the husband and the wife are the parties.

A non-party in a child custody case, for example, would be the child’s pediatrician or school. In a divorce case, the non-party may be one of the party’s retirement plan administrators.

If the non-party is willing to cooperate, one option is to send them a Voluntary Business Records Affidavit, requesting that they complete and return it along with the relevant documents. For instance, a child’s school might willingly provide the child’s records along with a signed business records affidavit, eliminating the need for court intervention to acquire these documents.

However, in situations where cooperation is not forthcoming, a more formal approach is necessary. This typically involves issuing a Request for Production and Subpoena to the non-party in question. For example, if a party requires access to their retirement account records dating back to the time of marriage, they may need to send a Request for Production and Subpoena to the plan administrator to obtain these records.