Discovery: The fact-finding and investigative phase of your case
Discovery is a legal term used to describe various processes that may be used to investigate and discover facts relevant to your case. After a lawsuit has been filed, your attorney can use discovery to obtain information and documentation to support or defend claims and investigate allegations asserted by either party. One of the advantages of having a lawsuit pending is that the court has the authority to require a party to comply with relevant discovery.
The most common forms of discovery used in family law matters, along with a brief definition and description, are those listed below.
“Interrogatories” are written questions submitted to a party and which require that party’s sworn written answers. Example: Identify all bank accounts that you have had an interest in during the last three years.
“Request for Production of Documents” are written requests submitted to a party requesting the production of certain documents for inspection and/or copying. Example: Produce a complete copy of your federal and state income tax returns for the last three years.
“Request for Admissions” are written statements submitted to a party requesting the litigant to admit or deny the truth of statements or authenticity of documents. Example: Admit or deny that you corresponded with Jane Doe during the marriage and prior to the date of separation.
“Depositions” are used to ask questions of a witness under oath. The parties to the action may be deposed, as well as witnesses, including expert witnesses, who are believed to have knowledge relevant to the case.
“Subpoenas” may be issued to require a witness to appear and testify at court or at a deposition. A subpoena ducas tecum may be issued to require a party to produce documents at court or at a deposition, or to command the production of documents from a third-party.
The method and scope of discovery used in your case will likely depend on the issues in controversy and the complexity of those issues. In most cases, both attorneys engage in the discovery process using one or more of the methods described above. Hence, your attorney may serve interrogatories and request for production of documents on the opposing party, and the opposing party’s attorney may serve interrogatories and request for production of documents on you. It is customary in divorce related cases to request information and documents that date back one to three years before the date of the parties’ separation.
Responding to interrogatories and requests for production of documents can be a tedious and time-consuming process, but it is an integral part of your case. For example, if your case involves a claim for post-separation support and/or alimony, your attorney must have extensive documentation regarding such matters as each party’s income, expenses, income earning ability, assets, debts, and standard of living in order to be able to successfully support or defend the claim. This requires producing tax returns, wage statements, financial account statements, retirement account statements, credit card statements and other financial and personal documents. It is essential that your attorney be able to verify information and examine documents through the lens of an experienced family law practitioner. Cooperating with your attorney and promptly producing documents and information that is requested from you is one of the ways that you can keep your litigation costs down.
The information gleaned through the discovery process is vital to your case and helps to ensure that matters are resolved fairly. The exchange of information provides each party with an opportunity to learn about the other party’s side of the case. This can enhance settlement potential through informal negotiations or mediation, or provide your attorney with information that is necessary to prepare for trial.
This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.