As a divorce lawyer and mediator, much of my time involves obtaining and analyzing information, whether our client’s case is a divorce, modification to child support, custody, parenting, alimony, or something else.
The Massachusetts divorce process requires certain information that the parties are required to exchange, but sometimes more details are needed. The process for obtaining this additional information is appropriately known as discovery. Discovery is not limited to family law matters, and is a typical part of court-based (litigated) disputes.
Unfortunately, some attorneys abuse the discovery process by filing excessive and unnecessary requests. This serves to ramp up legal fees, and can also be used as a way to harass the other side.
Intro to Common Forms of Discovery
1. Request for Production of Documents (RPDs)
This is just what it sounds like. When one side needs additional documentation to investigate details then a Request for Production of Documents is one way to get the information. Documents such as business records, tax returns, bank statements, credit card statements, investment accounts, may be requested, although some of this information must be automatically exchanged between both sides, typically through the attorneys.
Interrogatories are written questions sent by one side to the other side. Usually, the party having to answer questions must do so within 45 days, although sometimes the parties agree to extend this time. The party answering the questions must affirm that the answers are truthful.
In a deposition, one side asks the other side to appear in person to answer questions about the case while under oath. A court report records all of the questions and the deposition testimony, or answers. Other people related to the case may also be deposed. Depositions are not held in the court, but at one of the lawyer’s offices.
A subpoena is another useful method to obtain documents, especially when there are concerns that a Request for Production of Documents may not be fully responded to, etc. For example, subpoenas can be sent directly to financial institutions to obtain records directly. Corporate records such as payroll, stock grants, commissions, etc. may all be obtained through a subpoena for documents.
5. Requests for Admissions:
Requests for Admissions are used infrequently in Massachusetts divorce and family law cases, although they certainly can be effective. Requests for Admissions are written yes or no questions that ask the respondent to admit or deny specific facts. If there is a later trial, the answers to the admissions serve to “lock in” someone’s testimony. If the person answers differently, then their testimony can be challenged.
Discovery is an essential part of most litigated cases. It may take a long time to collect and analyze information, and “tit-for-tat” discovery requests will quickly add many figures to your legal bills. Thus, when your attorney wants to file discovery requests, don’t be shy. Ask what information your attorney hopes to obtain, and why this information is important. You may also want to ask if there is another way to obtain the information. For example, attorneys could agree to exchange certain documents without drafting formal pleadings.
Another way to avoid protracted discovery is to try and avoid litigation in the first place by considering alternatives such as divorce mediation or the collaborative law process.