In nearly every family law case, whether an initial case related to custody or a modification matter after a divorce has been granted, the participants will be asked to respond to discovery. Discovery can mean several things, but in this context, discovery is a combination of a series of questions to be answered under oath, called Interrogatories, and a list of documents that the party must locate and give to the other side, called “Requests for Production of Documents.” Virginia’s court rules set forth the ability to ask these questions, the requirements to answer them, the length of time one is given to reply, and other incidents of the process. For example, discovery is due within 21 days of issuance, though it’s not unusual for attorneys to agree to extend that deadline.
Discovery is used by the other side to get information that will help them with their case. Some of this information can be used in ways that will complicate or refute the story that the person being asked to turn the information over wants the court to hear. So why would anyone comply with discovery if it could just be helpful to the other side?
The simplest explanation for why compliance is necessary is because the rules say so. The process counts on the elimination of nearly all surprises and the equalization of knowledge between litigants before they end up in court; in fact, in some states, there is a set of required disclosures even to file a case. In divorce cases, one party may not have had full visibility into the marriage’s financial assets and therefore needs access to information from the other person to make the presentation of their respective cases fair.
What is often overlooked, however, is that in answering the discovery presented by the other side, the answering person is actually aiding their own lawyers in being ready for the case. The answers, and the process to determine what the answer ought to be, is a great way to educate the client’s own attorneys.
Usually, answering discovery gets the client’s take on
- The assets and liabilities of the parties;
- Each person’s income and benefits;
- The people that know the details of your case and therefore might be witnesses;
- The details of how and why the marriage is breaking up; and
- Other details necessary or helpful to prove claims in the case.
While that information does indeed to the other side, once it’s gathered, it’s gathered for both sides.
Some questions and requests go too far. They may ask for information not remotely related to the case, or for documents too far back in time to matter. When that occurs, the lawyers may lodge objections to the question, which can then be tested in court on a motion to compel. If an objection is overruled, then the information will become due. For that reason, often the lawyer will ask the client to provide the answer or documents anyway, so they’ll be ready if the objection does not carry the day.
For all these reasons, a client ought to do their best to provide full and complete answers and a complete set of requested documents the first time. Failing to do so can actually highlight the significance of documents that might not otherwise stand out. Worse, one of the risks of a motion to compel being granted is that the noncompliant party may have to pay for the other side’s lawyer to go to court to get a court order requiring the answers to be given.
A party’s continued refusal to complete discovery may have dire consequences, including the inability to present helpful evidence or witnesses, or to have claims dismissed, or to have to pay legal fees of the other party, or some combination of all of those things.
That is the easiest way to explain why we need you to act promptly and thoroughly when served with discovery. We will help you as necessary in editing your responses and in being sure you are truly answering the questions asked.
Good things happen when you answer fully and truthfully. Bad things happen when you leave things out or drag out the process.
