Discovery: The Legal Process to Obtain Facts, Evidence & Information in a Legal Matter


The Process of Discovery

In many divorce cases, you or your spouse may not know all the information that is needed to deal with or resolve many of the issues involved in your Dissolution proceeding. One of the tasks for an attorney and his or her client is to seek such information, e.g., to identify and place a value on the community assets and liabilities. Discovery is the legal term for obtaining information by various methods prescribed by law.

In addition to informal discovery and investigation, e.g., exchange of information between you and your spouse, the law allows certain formal techniques to obtain and "discover" this information. Among these techniques are interrogatories, Document Productions, Requests for Admissions and Depositions. In each of these techniques, questions are asked of a party and responses must be given under oath.

Additional procedures are available wherein accountants, appraisers and/or other experts may examine documents or property and make evaluations. Also, there is a procedure to require parties and witnesses to produce documents for inspection. All of these procedures are designed to put both parties on equal footing in having the information necessary to prepare for either settlement or trial.

The Purpose of Discovery

The purpose of informal or formal discovery is to gather all of the necessary and appropriate information in order to make certain that a party is prepared fully for hearings, settlement and/or trial. In our opinion, it is important to verify as much information as possible. Our goal is to make certain that a client is well aware of all of the relevant facts and information so that they can make informed decisions with regard to their case.

While every client has a right to conduct formal discovery, the potential benefits of it must be weighed against the time and expense formal discovery requires. The decision to conduct formal discovery depends on the complexity and size of the community property estate and the client's knowledge of the estate. The time and expense of formal discovery is sometimes justified by the new information that is discovered. In other cases, it may just confirm what is already known or believed.

In view of the foregoing, one of the important decisions that must be made by the client and the attorney at the onset of the case is the need for, and the extent of, formal discovery. Obviously, the safest practice in all cases would be to utilize the maximum discovery. However, in a given case, the client and the attorney may decide that the time, cost and/or emotional involvement of discovery are not warranted.

The Details of Discovery

A "Deposition" is a "question and answer session" conducted before a certified reporter. The questions which are posed by counsel for the party requesting the deposition must be answered under penalty of perjury. The questions and answers are taken down by the court reporter and eventually typed into a booklet form. The testimony given at a deposition can be used as evidence at future court hearings and/or trial.

Written "Interrogatories" are written questions sent by one attorney to the other party's attorney which must be answered by the party (with the assistance of his/her attorney) under penalty of perjury. The answers to the questions, under certain situations, can be used as evidence at time of hearings and/or time of trial.

"Requests for Admissions" are written requests sent by one attorney to the other party's attorney which must be answered under penalty of perjury by the party receiving it. These Requests are designed to obtain the other party's admission that certain facts are true.

"Requests for Production of Documents" are requests that the other party produce documents in preparation for hearings and/or trial. The requested documents generally include things such as employment records, tax records, insurance records, medical records, bank account records and various other items regarding the issues involved in a Dissolution proceeding.

Through the issuance of a Subpoena, a party can obtain third party records, i.e., employment records, bank records, insurance records, and medical records regarding the other party, from third parties and other sources. The Subpoena can be used to verify information and/or obtain information in preparation for trial and/or hearings.

Contact a Santa Clarita Family Law Attorney

Our law office is located in Santa Clarita, serving communities in Saugus, Canyon Country, Valencia, Newhall, and more. If you have any questions regarding divorce, spousal support, child support, questions about modifying a child support order, or if you need assistance obtaining information or documents from another party pending a divorce, child custody dispute, or child support request, please call family law attorney Eric Martinelli with the Martinelli Law Group for a free consultation.