Discovery is information gathering in the context of litigation. In family courts in Los Angeles, discovery is often discussed and argued. Outside of the family courts, parties to divorce cases and their counsel propound and respond to discovery demands every day. Discovery is an integral part of every divorce and other family law case, as it serves as the basis for evidence to come in at a trial or provides the information necessary for a party to enter into an agreement to resolve their case.
Family law and divorce cases often have serious issues that need to be resolved, including child custody, child support or spousal support, and the division of assets and debts. These serious issues should only be resolved when all pertinent information is available to both parties. Sometimes, this information is not available because one party is hiding that information or simply doesn’t make a full disclosure of the information.
Also, some relevant information do not fall under a category of information that the law requires a party to spontaneously provide. For example, if a child is flunking all of her classes in school, this type of problem is very relevant to the issue of custody and visitation. However, there is nothing requiring a parent to produce this information to the other parent unless a court order exists requiring such information to be transposed.
Or as another more common example, suppose a self-employed spouse provides all the relevant financial information required under the Family Code, Rules of Court and Riverside County Local Rules relating to their income. However, they will not voluntarily provide their corporate or business financial books, computer hard drives, list of customers, and so forth. These bits of information may be extremely relevant to the issue of support and division of assets.
Discovery is a mechanism to gain this information, and there are many discovery tools available to Los Angeles divorce lawyers. Discovery should be used when the declarations of disclosure do not reveal or provide all information that a party needs to make information decisions about setline the case, or information that is needed for divorce litigation.
How is Discovery Conducted?
Discovery is initiated by the “propounding” party (the party seeking the information) and it is “served” on the opposing party or on a third party where the information is being sought. The person or entity that receives the discovery demand is required to submit their response under oath in the time required by statute, which depends on the discovery tool being utilized, or they must appear to have their deposition taken if that is what is requested. If a response is not given or an insufficient response is given to the demand, the propounding party must try and informally resolve the discovery issue with the opposing party or third party entity before filing a “motion to compel” the full and complete response. If the “meet and confer” attempt to informally resolve the issue is unsuccessful, the propounding party may file a motion to force compliance.
What is a Motion to Compel?
A motion to compel filed in Los Angeles County courts by a Los Angeles family law attorney is a request that the court take action because a party or third party is not cooperating with valid discovery requests. A motion to compel is set by filing a Request for Order in the L.A. Family Court, and may request certain relief including any or all of the following:
- An order compelling a party to provide responses or full responses to a demand.
- An order compelling responses to form or special interrogatories.
- An order compelling a non-party to provide documents.
- An order seeking attorney fees.
- An order for “issue” or “evidentiary” sanctions against the other party, which means that the party will be barred from producing any evidence regarding a particular issue at trial.
- An order requiring a party to allow access to certain documents or property.
- An order requiring a party to participate in a vocational evaluation or medical evaluation.
Motions to compel are extremely complicated and if not done exactly right, they will be denied by the court. For example, most people and lawyers are unaware that a “Separate Statement of Issues” is required for a motion to compel, which outlines the demand made, the response, and why the information should be compelled. All this information needs to be included in one document. If you have discovery issues in your case, contact a qualified family law attorney in L.A. immediately.
Can Parties Agree to Discovery Issues?
Yes, parties to a divorce in Los Angeles are free to reach agreements on nearly any issue involved in their case, including any discovery issues. Parties can agree to extend deadlines, provide mechanisms to deliver information to each other, provide for alternatives to formalities and agree to “informal” discovery, and so forth.
Are there any Discovery Deadlines?
Yes. A thorough understanding of all the applicable rules (particularly the Code of Civil Procedure) is necessary to understand the hundreds of applicable rules. For example, there are deadlines to have discovery completed before trial or the party is not entitled to complete the discovery demand, even if the trial is continued to another date. This is just one extremely important example of the deadlines imposed for California divorce cases.
Common Discovery Types with Examples:
There are a variety of tools that civil lawyers including Temecula divorce lawyers have available to them to gain information through the discovery process. Below are some of those types discovery tools along with examples of some practical uses of these discovery options:
- Demand for Inspection of Documents and Things – Some examples of demands include:
- All checking, savings and other deposit account statements for any financial account in your name or that you have access to, for the 36 months preceding the date of production.
- A copy of any and all hard drives that you own, possess or have access to.
- A copy of your passport.
- All retirement account statements, including but not limited to account statements for all 401k, pension, IRA and other retirement assets from January 1, 2010 to the present.
- Special Interrogatories – Examples include:
- Describe all financial accounts that you have had access to within the past 5 years.
- Identify all persons that you have purchased a gift of more than $500 for within the past 10 years, excluding your spouse.
- Describe any software you utilize to manage your finances
- Form Interrogatories – These are found on a standard “check the box” form, and the propounding party can select which items they wish the responding party to complete including (paraphrased):
- Complete a Schedule of Assets and Debts (attached)
- Identify whether you are seeking credits for any post-separation payments you have made to community debts.
- Describe whether you have any health conditions that limit your ability to work.
- Request for Admissions:
- Admit that you quit your job in April 2014.
- Admit that you have never given your child a bath.
- Admit that you held a bank account at Bank of America within the past 5 years.
- Depositions – some examples of types of written deposition requests to third parties include:
- (To a bank) – Provide Tom Smith’s (SSN 555-55-5555) account statements for any account in his name as a primary account holder or signatory user from January 1, 2005 to the date of production.
- (To an accountant) – Provide all documents in your possession, including but not limited to tax returns, tax filings, tax notes, written memoranda, communications including emails, and other documents relating to Tom Smith (SSN 555-55-5555).
What is ESI?
The term “ESI” has gotten recent notoriety and it means, “Electronically Stored Information”. In divorce cases, ESI often refers to data stored on a home computer, data files such as pictures, login information, app information, GPS data and related information, and so forth.
ESI is often demanded in family and divorce matters in Los Angeles, although many litigants and attorneys do not understand the basic fundamentals of what ESI is and how to get it. ESI can be extremely complex and if not dealt with properly, either on the demanding or responding side, the court could impose significant monetary and possible evidentiary sanctions.
What is the Best Way to Obtain Information About my Spouse’s Finances?
There are a multitude of tools we often use to gain information about an opposing party’s finances. First, parties are required to submit a written disclosure of all of their accounts and include account statements. They are required to disclose all assets and provide supporting documentation. However, these disclosures are merely a snapshot of the accounts that the person currently has and they do not give any historical perspective. Divorce litigants are not required to provide anything but current financial circumstances in their preliminary declaration of disclosure. As a result, discovery is often key to gain this historical perspective.
Our firm nearly always begins by reviewing the opposing party’s Schedule of Assets and Debts and Income and Expense Declaration before determining to proceed with formal discovery. Once we determine that there is additional information we need, sometimes we simply ask the opposing counsel if we have an excellent relationship with them. If “informal” discovery is not an option, we begin analyzing what discovery tools will best suit our needs to gain information relating to the opposing party’s finances.
We must determine what information is needed before we can decide what discovery methods to employ. We ask:
- Is the party self-employed? If so, we will probably need personal tax returns, business returns, business records including QuickBooks or other financial software files, client lists, business credit card statements, expense reports, and other similar information.
- Does the person have offshore accounts? If so, we will probably need to employ a qualified investigator that has the acumen to obtain this information.
- Does the opposing party have any undisclosed accounts in the U.S.?
- Has the opposing party possibly transferred assets to a third party? If so, we are going to need to obtain financial records going back several years prior to the possible transfer and get the relevant financial documents.
- Has the party failed to disclose “employment benefits” such as commissions, bonuses, stock, stock options, restricted stock units, vacation paid, accrued sick leave, retirement benefits or other benefits?
Once we determine that information is needed, we usually allow the opposing party the opportunity to provide this information to us by propounding a Demand for Inspection of Documents. This demand is sent to the person’s attorney and they have 30 days to provide written responses, including objections if they wish to object, and the demanded documents. It is rare that everything relevant demanded is provided on the first response. Usually we must “meet and confer” several times to ultimately get the other side to provide the documents.
If the opposing side is difficult, we will press them for the information by threatening to file a motion to compel, follow up with Special Interrogatories (specially crafted questions that they must answer under oath) or Requests for Admissions (specially crafted statements of fact that the opposing party simply admit or deny). Alternatively, we notice the opposing party that we intend to take their deposition. The opposing party must come to our office or other place we demand and answer questions under oath. We need only provide 10 days advance notice for this to occur.
If the opposing party is not helpful, we will obtain the needed information from third parties such as business partners, new boyfriends or girlfriends, banking and other financial institutions, and so forth. This is usually accomplished by a Subpoena Duces Tecum.
Act Now
There are rules that govern the methods of discovery in a Los Angeles family law case. It is important that you hire an attorney familiar with the rules so that you are well-prepared and timely with your requests and responses to discovery.
For additional information about discovery in divorce and other Los Angeles family law cases, contact our office today. We have superior experience in all areas of discovery, and we can help you.