Discovery

Between the time the Response is filed and the trial, both sides are allowed to conduct “Discovery.” This is a procedure that allows the parties to obtain relevant information from each other or other persons. Any questions answered or information provided in discovery is done so under penalty of perjury.

The four most common types of discovery are:

• Interrogatories
• Depositions
• Notices to produce for photocopying and inspection
• Subpoenas

Interrogatories are written questions that have to be answered in writing within 30 days after receipt by the attorney. A deposition is a trial-like procedure in which the Petitioner, Respondent or another person is questioned by one of the attorneys before a certified shorthand reporter.

• Depositions are court proceedings held in the attorney’s office. A shorthand reporter takes down the testimony of the opposing party or another witness, under oath, and later reproduces it in booklet form. That information can be used at trial.
• Records may be subpoenaed from third parties, either to be copied and sent to the respective attorneys or to accompany a deposition of the third party in the attorney’s office.
• Interrogatories are written questions that may be sent from one party to the other, requiring that the responding party review all records and books and consult with his or her agents in order to respond under oath.
• Experts, such as appraisers, accountants, pension actuaries and psychologists may be employed to investigate and write reports to the attorneys or the court, and to provide expert testimony when needed. Numerous other experts may be employed to assist the attorney in conducting the case and preparing for trial.

Either party can submit a Notice to Produce for Photocopy and Inspection that requires the other party to bring specified documents to the office of the other party’s attorney, at which time these documents may be inspected and photocopied. It is usually mailed to the other attorney’s office. A subpoena is a court authorized form that requires the person served to produce specified documents or records at the office of the attorney who has prepared the subpoena. Unlike a notice to produce, a subpoena must actually be served on the responding party.

There are two primary limits on discovery. First, documents and information can be “discovered” as long as the documents and information are relevant to the subject matter of the case or might lead to the discovery of relevant documents or information. For example, a party cannot conduct discovery regarding the reasons for the dissolution because marital fault is not relevant to the dissolution process in California.

Secondly, the discovery cannot request information or documents that, if disclosed, would violate an evidentiary privilege. For example, an attorney’s letters to his/her client are not discoverable because they come within the definition of the “attorney-client privilege.”

If the responding party believes a discovery request has violated either of the above, the court can order that the discovery be “quashed” or otherwise terminated.