Discovery is the process by which one party requests documents and information from the other party. Discovery can be formal or informal.
Family law discovery is often informally conducted through a voluntary exchange of documents and information. Informal discovery is preferred because it is far less expensive and time-consuming than the formal discovery. Obtaining information and documents from informal discovery is limited to what the other party is willing to provide you, and there is no recourse if they fail to cooperate with your requests.
If you have been served with formal discovery, such as a subpoena or inspection demand, you may have a short time in which to respond. Failure to respond can prejudice your case and even subject you to sanctions by the court. Even if you do respond, an opposing party or attorney may critique your response and deem it inadequate for failing to meet certain procedural requirements.
Formal discovery includes:
- Requests for Admission
- Requests for Production of Documents or Things
- Inspection Demands
- Physical/Mental Examinations
- Expert Witness Disclosures
- Declarations of Disclosures
Responding to Discovery
If you have been served with a discovery request, you may have a short timeframe to respond. Failure to respond can prejudice your case and subject you to sanctions by the court. Unfortunately, this is true even if the request itself is invalid. This is because where a request is invalid, the party subject to the request must object or respond accordingly.
For example, our office assists our clients with determining what information needs to be supplied, if any, and objecting to or challenging discovery requests that are improper.
Common Issues with Discovery
Formal discovery may be improper if it fails to request the right information from the right persons in the right amount of time. Common issues with formal discovery include, without limitation:
- It is made within the wrong period of time
- It is demanded from the wrong person
- It is an attempt to request cell phone/text records, but fails to properly serve the wireless provider
- It is not served properly and/or within the required amount of time
- It is vague or ambiguous
- It is overbroad because it is not limited in time/scope
- It does not sufficiently describe the item/documents to inspect
Again, however, even if the discovery demand is improper for any of the above reasons, the party’s answer to it must sufficiently object to reduce their risk.
How Having an Attorney Helps with Responding to Discovery
- An attorney can determine whether the discovery demand is valid or not.
- An attorney can advise on if and when a response is required.
- An attorney can challenge the discovery demand.
- An attorney can often negotiate additional time to respond, depending on the complexity of the demand and willingness of the opposing party or their attorney.
- An attorney can defend you if you previously failed to respond to a discovery demand.
What Happens if a Party Fails to Respond to Discovery
- Evidence may be considered admitted if you fail to deny or object to requests for admission.
- The Court may compel you to act/produce information as requested by the discovery demand.
- The Court may assess Civil or criminal penalties such as fines and/or jail time.
- You can lose the right to contest certain issues later in the case.
Our office provides free consultations to prospective family law clients. We are experienced in handling discovery, including related issues such as protective orders, motions to compel, and defending clients against those motions.
By Christina E. Cortino, Esq., a family law attorney practicing in Sacramento and Bay Area counties.
Disclaimer: This publication is designed to provide our clients and contacts with information they can use to more effectively manage their resources and information. The contents of these publications are for informational purposes only. Neither the publication nor the lawyer(s) who authored it are rendering legal or other professional advice or opinions on specific facts or matters. The author assumes no liability in connection with the use of this publication.