Austin Family Law Attorney Explains Written Discovery
Not every case is a simple one and it is very common for lawyers to have to conduct and/or respond to written discovery requests. Usually clients are confused by the process and what it involves so in this post I am going to lay out a basic explanation of the kinds of written discovery requests that typically get made in a Texas divorce case, the purpose of each, and how difficult and time-consuming each is to respond to. While there are forms of discovery other than written discovery (the most common being the deposition), this post will discuss only written discovery.
What Gives Attorneys the Right to Send Discovery?
The Texas Rules of Civil Procedure are what provides the authority for lawyers in Texas cases (including divorce and other family law cases) to conduct written discovery. In general, the purpose of written discovery is to gain information about the case in order to help you evaluate the case for settlement purposes as well as to prepare for trial. If you have done an effective job in obtaining discovery from the other side then you should be fully prepared to negotiate a settlement of the case if possible, or try the case if necessary.
Interrogatories are basically questions that you get to ask the other side. While each case has its own nuances and facts, there are basic interrogatories that most lawyers ask in every divorce case. These might include who the party knows that may testify in the case (basically, a potential witness list), what assets exist, what liabilities exist, what a party’s income is and information about their employment history, and details about that party’s contentions in the case. Depending on the issues in the case there are likely to be questions about other issues like child support, proposed conservatorship and visitation issues, spousal support, reimbursement, etc.
Frequently one side will not like some of the answers given by their spouse. I have often been asked by clients what we can do about some claim made by the other spouse, in other words how can we make them retract that statement. Generally, the answer is that we cannot do anything about it. They are allowed to take whatever position in the case they care to. Our job is to prove to the court that our position is the proper and correct position.
Depending on what is asked the Interrogatories can be fairly complicated and time-consuming to answer. Your attorney should help you in answering the questions and making any objections that are necessary and appropriate.
Request for Disclosure
These are somewhat similar in nature to Interrogatories, but they are very limited. The rule that allows for Requests for Disclosure limit the questions asked in the Request to only questions that are explicitly laid out in the rule. Neither party is entitled to ask additional questions or to modify the questions. They are basic questions that should get asked in every case, such as identity of individuals with knowledge of relevant facts, identity of any expert witnesses, and contentions about the various issues in the case.
Answering Requests for Disclosure is relatively straight forward and one of the simpler discovery documents to respond to. No objections are permitted so you and your lawyer simply answer the questions.
Request for Production
A Request for Production is a request to produce written records of various kinds. The person responding to the request is required to compile all the responsive documents and “produce” them. Depending on the issues in the case, the amount of records that might be at issue can be huge. Sometimes this is necessary because an issue in the case requires a great deal of documentation to evaluate and to prepare for trial. However, this is one of the more abused areas in the discovery process, as it is sometimes used simply to force the other side to do a lot of work and incur a lot of expense on the case.
Your lawyer should give you significant guidance in terms of what documents to compile and also what requests should be objected to, either entirely or in part. Responding to the Request for Production is one of the more time-consuming issues in discovery and can add significantly to your overall attorneys fees expense in the case.
Request for Admission
A Request for Admissions is essentially one party asking the other to answer a series of yes/no questions. The idea behind sending a Request for Admissions is to get the other side to admit to certain facts that will help you limit the issues and thus reduce the number of things that you are required to prove.
For example, if you were seeking a court finding that a piece of real estate was your separate property because it was given to you as a gift by your parents your lawyer might send a Request for Admission asking the other party to “admit or deny that the 101 Jackson Street property was given to husband by his parents.” Requests for Admission are not typically done in divorce cases but they sometimes are an effective tool and are used occasionally. Due to the yes/no nature of the Request for Admission they are not usually very time-consuming to answer.
Those are the key areas of written discovery. If you getting divorced and are fortunate enough to be certain that you have all the necessary information already readily available to you and your spouse, then discovery may not be necessary. However, if you are in the position of not knowing exactly what assets or liabilities are involved or information about any other issue in the case, then written discovery can be a very effective way to get information and documents to help you analyze the case.
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I’ll admit when I got married, my family did everything we could to keep certain financials in the know. But I wonder if this will or HAS to be presented as we divide up the assets. Nothing is signed to her, but does this count in our split? It doesn’t seem fair, as the investment came long before she did.
Zane, take a look at this separate property video I did on the site. It goes into great detail about what is separate property and how it is handled in a Texas divorce.
Written discovery to me is complicated, but I appreciate you breaking down the basics and giving us tangible information, the 411 on the breakup biz. We can call you the anti-cupid, Scott. LOL
Thanks Keena, the anticupid huh? I guess I have been called a lot worse, lol!