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Divorce and Discovery (Part 2)

Earlier this month, we posted the first part of this article, setting for the basics of what family law attorneys call “discovery.” As previously indicated, discovery is generally issued in divorce, custody, or child support cases when one side believes more information is needed. This can include a heightened request for documents, generally financial in nature, or requests for questions to be answered, whether of a child related or financial nature. Discovery in a family law case will generally entail interrogatories (questions to be answered) or requests for production of documents. Your attorney can assist you with determining whether the specific facts and circumstances of your case warrant, or necessitate, the issuance of discovery.

Some examples of when discovery might be needed would be in a situation in which the wife has handled all of the family finances or, perhaps owns a business. In such an instance the husband might be in the proverbial dark as relates to the family finances, past or present, and may be in need of further information for purposes of assessing a divorce settlement or preparing for court. Interrogatories may be a useful tool for purposes of ascertaining the other side’s position as relates to custody issues, or perhaps for purposes of boxing them into specific written answers which can be used in court. As indicated in the prior posting on this subject, when one side issues formal discovery, it is extremely likely that the other side will do the same. Set forth below are some common rules or pointers for both issuing discovery, as well as responding to it.

1. Pursuant to the Colorado Rules of Civil Procedure, discovery must be issued 63 days before a hearing. Generally, this would be the final divorce or custody hearing. In some instances, there may be interim hearings set, such as a temporary orders hearing. Discovery can be issued less than 63 days before these interim hearings, but one must be aware of that 63rd day prior to the final disposition of the case. Though courts can sometimes be flexible or lenient with deadlines in a family law case, the technical rule would be that discovery issued within that 63 days is issued improperly. When faced with improperly issued discovery, one should look at filing an objection to the request within the time frame allotted.

2. Discovery may not be issued prior to the initial status conference in any case. Pursuant to C.R.C.P. Rule 16.2, parties must first attend the mandatory touch base conference with the court prior to issuing discovery. Some counties may even issue case management orders indicating that permission must be sought from the court prior to issuing discovery. Parties should be aware of the provisions set forth in their case management orders. From time to time, we do even see attorneys issuing discovery early, or late. In those instances, and objection is also appropriate.

3. When issuing discovery in a custody or divorce case, one must be cognizant of the rules and craft questions or requests in a careful and efficient fashion. Beyond the pattern interrogatories or requests for production of documents (set forth by statute), each party, absent permission from the court, is limited to the number of non-pattern questions or production requests he or she can make. Specifically, each side may ask 10 additional questions or seek production of 10 additional items or document types. This can include sub-questions. Thus, it becomes important to ask questions or make requests specifically designed to garner the information needed. Non-pattern questions or requests should be relevant to the case and should not be designed simply to annoy or harass the other side. Requests of this nature will certainly draw an objection.

4. Pursuant to C.R.C.P. Rules 33 and 34, a party served with discovery (which can be done through regular mail, not actual service), has 35 days to respond. Though 35 days may sound like a significant amount of time, it can go by very quickly for those embroiled in the day to day aspects of a divorce or custody battle. It is imperative to understand your time frames and to confer with your attorney so as to make sure you are compliant. That being said, it is quite common for one side or the other to request a few extra days to finish interrogatory or production requests. This will depend on the relationship between attorneys or the overall demeanor of the attorney who issued the discovery. If it looks like more time is needed and the issuing side is dead set on the rules being complied with to the letter, one can also request an extension of time from the court. As long a reasonable purposes for the extension are set forth, a court will generally grant a short extension of time. This also depends on how close to hearing the parties may be.

5. The general remedy either side may seek for one’s failure to respond to discovery responses is a motion-to-compel, filed pursuant to Colorado Rules of Civil Procedure Rule 37. Failure to comply can come in various forms, including either not responding to all or part of the discovery, or not providing everything requested. In essence, a motion to compel is a request made to the court to try to force the other side to respond to the discovery issued. When such a motion is filed, the court will generally enter and order indicating that responses must be provided within a certain, generally short, time frame. The court will also likely entertain any reasonable request for attorney fees related to the filing of the motion. Furthermore, if a party truly just refuses or fails to respond, the court can also enter various sanctions, including an order precluding the non-compliant party from presenting related evidence as part of his or her case. Judges do not like controversies related to discovery. Attorneys know this and some will file a motion to compel just to make the other side look bad in the eyes of the court. Fortunately, C.R.C.P. Rule 37 requires a “good faith” effort to resolve any discovery disputes prior to the filing of a motion. Thus, neither side can, in theory, go running off to the court on day 36 seeking an order to compel. The purpose behind this requirement is to promote communication, not litigation. Court’s generally don’t want to have to stand by as referees on these types of matters.

6. When answering interrogatories, just as with testifying in court, one should pay attention to the specific question asked. There is no “right” or “wrong” answer. Of course, one should be truthful. A party need not provide more information than what is requested. Likewise, a party may elaborate on an answer if he or she feels more explanation is needed. Our attorneys will often have parties provide their initial answers to us to review, comment on, and suggest revision to. Your interrogatory answers are signed, under penalty of perjury, and could very well pop up in court as an exhibit. Thus, how one answers does matter. For purposes of preparing your draft answers to provide to your attorney, correlating your answers number by number or letter by letter with the interrogatories issued will help your attorney put those responses into proper format in an organized and logical fashion. One should also keep in mind that “I don’t know” or “unknown” are fine answers. One should also take the time to refer back to other documents or pleadings in the case. An opposing counsel loves nothing more than to have changing or shifting positions or statements set forth by the other side, whether
for credibility purposes of otherwise. Again, what you put down does matter and could have a bearing on the outcome of your case. Unlike testifying on the stand, the party answering interrogatories has a lot more latitude to tell his or her story on a particular subject.

7. Requests for production of documents can be the most onerous aspect of the discovery process. The pattern requests can be extensive, such as the request for the last 3 year’s bank statements, cancelled checks or check registers, and deposit slips. Gathering these things can be a Herculean task. In reality, most people have not gone through life saving every bank statement or credit card statement. Often times, small business operators are horrible record keepers. When faced with a production requests, parties should keep the following in mind:

a. If you have the items or documents requested in your possession, or readily available, they will need to be provided.
b. If the documents are easily obtained, such as bank or credit card statements on line, one has a duty to obtain and provide.
c. If there is a significant cost to obtaining documents, such as a $1 per page charge from your bank, the cost can be passed on to the other side.
d. For documents which are not easily obtainable, or for which gathering brings a significant cost, it is perfectly acceptable to sign an financial or non-financial release in favor of the other side. If a release is issued, it should be specifically tailored to the discovery request and should have an end date, generally right after the final hearing date.
e. When documents are requested related to a joint account, held with the other party, a duty to provide that which is in your possession exists. Beyond that, the other side has the same access that you do. Thus, they can bear the responsibility to obtain such.
f. Technically, documents can be provided to your attorney, to be held at his or her office, for the other side to come inspect or copy. Attorneys rarely invoke this aspect of discovery, as they know karma will have the other side take the same position. Financially, it is just easier to send the other side copies.
g. Whether documents are easily obtainable, a written response to a production request should also be provided, indicating any deficiencies, why those deficiencies exist, and where the other side may obtain the documents.

When discovery is issued in a family law case, it should be taken seriously. These posting on the subject are designed to give the reader a basic understanding of the ins and outs of the process. Your Denver divorce lawyer can assist you as to the more specific aspects of the process, including how to respond or whether discovery is really needed. The discovery process can become costly and acrimonious, depending on the complexities of a case and parties involved.

Author Photo

Stephen Plog, co-founder of Plog & Stein, P.C. in 1999, is a dedicated family law attorney with almost two decades of expertise in Denver. Focused exclusively on family law since 2001, he excels in both intricate legal writing and courtroom litigation, having navigated cases in all Denver metropolitan area District Courts. Steve’s comprehensive background, including a Bachelor’s Degree in Psychology and a law degree from Quinnipiac University School of Law, underscores his commitment to providing insightful and personalized representation in family law matters.