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An Introduction to Discovery Requests: What do I have to provide?

Inevitably, unless a case is quick and uncontested, there will be discovery requests. The purpose of discovery requests is to allow the parties to gain evidence against each other and to determine what evidence the other party may use in trial. Discovery requests can take many forms, and each jurisdiction will have its own rules about how and when discovery is requested; Interrogatories and Requests for Production of Documents and Things, being some of the most common. Some jurisdictions have a limit to the number of questions and requests you can initially ask of the other party, some jurisdictions have a pre-set list of requests provided by the court, some have no restrictions at all; it varies. What doesn’t change, is if something is asked in the Interrogatories, or asked for in the Requests for Production, generally speaking you will have to answer it.

Now, of course there are exceptions: if something will be unreasonably difficult to acquire, or remember; or if the request goes far outside the usual scope for discovery and is not reasonably related to either the claim or defense of the issues in the case, for example; then you may object to answering the specific question. But these objections will have to be made long before trial and be approved by the Court. You can’t wait until the day before trial and decide that you don’t want to answer a discovery request; objections have to made in a specific time and manner as directed by your specific state and local jurisdiction. And outside of certain exceptions, you have to answer the questions and requests made to you; especially if you want the same information from the opposing side.

One of the most common things I hear from my domestic clients regarding discovery is, “I don’t want my ex to know that….” whatever it may be: tax information, household income information, medical histories, and account balances, being the most common items people are reluctant to share. My response, as politely as I can manage, is usually along the lines of, “too bad, answer it anyway”.

Here’s the thing, you must provide information about the issues you want to talk about in the case. If you make an issue of child support or maintenance in a case, you have to provide your income history; otherwise the court can’t make an informed decision about how much child support or maintenance to award, if any. If you make child custody an issue of the case, then you have to be willing to disclose any medical or criminal histories that may affect your ability to care for the child. If hiding that information is more important to you then finding a fair and reasonable resolution in court; then simply cave to the other party and settle the case. Otherwise, answer the discovery requests.

Hollywood has done citizens a great disservice with how the legal process is portrayed in media. You are not going to have last minute evidence show up, half way through a trial that seals one side’s argument in a case. Generally, the expectation for discovery requests is for both sides to be done with evidence search long before trial so that everyone knows what evidence is expected to be used, and ideally, avoid trial altogether through a joint settlement. You do not get to withhold evidence for dramatic effect, as the judge is rarely so interested in finishing the case that they will proceed without the evidence you are supposed to provide. It’s not uncommon for judges to push back trial dates so that parties can have adequate discovery responses provided to them. The most likely result to refusing to answer discovery requests, is being compelled to answer them anyway; under the threat, and then enforcement, of one or more of many possible sanctions for failing to answer the requests in a timely manner. Sanctions can include, having to pay attorney fees to compensate the opposing attorney’s time to bring the motion to compel in the first place, attorney fees for the entire legal action, having pleadings stricken and the case dismissed, or even being held in contempt for lack of cooperation with the court.

In general, just listen to your attorney, if they don’t want you to answer something because a question is out of line; they’ll tell you so. Believe me, it will save them time, and save you money if they don’t have to battle with both you and the opposing counsel over very typical discovery answers.

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