The Role of Discovery in the Family Law Case

In Arizona, the civil procedural rules applied in family law cases are found in the Arizona Rules of Family Law Procedure (ARFLP). Those rules refer to the gathering of evidence as “disclosure and discovery.” Unless you’ve been involved in some form of litigation before your divorce, you probably are unfamiliar with the concept of discovery in a court case. Discovery procedures involve the formalized exchange of information in the context of litigation, no matter what the case may be about.

Discovery is a crucial process for investigating all the facts in a case. Through discovery, each party gains knowledge of the facts and, as a result, knowledge of the strengths and weaknesses of a particular position on each issue. This increased factual understanding is gained through the mandatory disclosure of requested information. The information is commonly requested in discovery because it is in the possession or control of the other party when the discovery request is made. Information may be requested to supplement the requesting party’s own information, and to help that party develop the case further. In general, any information that would be relevant, or that would lead to relevant information, may be discovered. As with all things, there are limitations to discoverable information, however.

Limitations on Discovery

During the discovery process, the parties determine what information is needed to support their respective claims on the issues. Both parties will identify their witnesses and exchange documents and the like for evidentiary purposes. The tools of discovery are used to acquire information from both parties and from third parties. Before we go any further, however, you need to understand that there are some important limitations to discovery:

  1. Privileged Information. A party can’t ask for privileged information from the other party.
  2. Excessive Requests. A party can’t inundate the opposing party with discovery requests.
  3. Embarrassment or Harassment. A party can’t use discovery to embarrass or harass the other party.
  4. Relevancy. A party can’t ask for information that isn’t truly relevant to the case.

Discovery not only enhances the likelihood of successful negotiations, it is preparation for trial.

Rule 49 Disclosures

In every family law case, ARFLP Rule 49 mandates that both parties disclose certain documents and answer questions relevant to the case. This duty to disclose is a “continuing duty” — each party is required to provide additional information and amend previous disclosures when changed circumstances warrant doing so. The exchange of this information is required so each party goes into divorce negotiations with an equal understanding of the underlying facts. We refer to these as the “Rule 49 disclosures” and there are quite a few of them.

The disclosure process begins with the completion of an Affidavit of Financial Information by both parties. Each party files a resolution statement, which states any agreements and how the party proposes to resolve all the issues in their family law matter. Along with the party’s resolution statement, he or she must also provide documents and information regarding child custody, parenting time, child support, spousal maintenance, attorneys’ fees and court costs, property, debts, and witnesses (lay and expert).

The Interrogatories

Simply stated, interrogatories are written questions served on the other party — both parties will answer interrogatories. Rule 60-61 ARFLP. Each party must answer the questions truthfully, in writing, and under oath. As a very useful discovery tool, interrogatories are coupled with depositions. The primary restriction being that, unlike depositions, only the parties in the family law case are served with interrogatories.

Interrogatories help the parties focus on factual information and also help establish the validity of documents. These questions are tailored to ask for very specific facts. This is to avoid overly vague or incomplete answers. The interrogatories are helpful in collecting each party’s statistical information, financial details, employment history and income, as well as criminal arrest or conviction details. Besides the primary function of finding out information, the answers to the interrogatories can be read in court as admissions by the answering party.

There are two types of interrogatories: uniform and non-uniform. The uniform interrogatories are in court-approved form, for general use in any case. Questions specific to your case, and outside the scope of the standard form, are non-uniform interrogatories. The parties send one another these written questions to be answered. A party may formally object to an interrogatory if, for example, the question is asking for undiscoverable privileged information.

The Deposition

In a deposition, the witness is required to appear at a specified location for the purpose of providing information regarding some matter in the litigation. Rule 54-59 ARFLP. Unlike the interrogatory, which may only be served on a party to the case, the deposition may also be used for third parties. A deposition can be done upon written questions or orally, by telephone, or in person. Regardless of whether the deposed witness is a party or a third-party, the deposition may be introduced at trial to impeach that witness with any different, contradictory, or inconsistent statements that he or she made. Deposition answers may also be admitted into evidence when the parties have agreed that a witness will not be called to the actual hearing. This often happens when the parties are accommodating a busy professional such as a physician, psychologist, or other expert witness. Depositions may also be used at trial when the witness lives far away, is out of the country, has died, or is otherwise unavailable to testify.

Here is short summary of what happens when the opposing party is deposed:

At the deposition, the opposing party appears with counsel, is placed under oath, and is asked questions by your attorney. Although depositions are usually oral, they may sometimes be written. They may even be video recorded. The deposed party’s attorney can’t coach the witness, but may properly object to any questions that are posed. The witness may also be compelled to bring along documents, or other items, to the deposition. A record of the deposition must be made for evidentiary purposes. Usually, a court reporter, or stenographer, is there to record the questions asked, the answers given, and any objections made. An official deposition transcript is then prepared and the deposed party witness has an opportunity to review the transcript and make corrections.

The answers to deposition questions may be used in court for various purposes, in addition to impeachment of the witness.

The Request for Production

The requests for production of documents and things, and entry upon land for inspection and other purposes, is a very powerful discovery tool. Rule 62 ARFLP. Essentially, requests can be made for anything in the possession or control of a party upon whom the request is made. A request for production allows one party to request that the opposing party produce tangible evidence for the purpose of inspection and copying, and much more. The request for production may permit the requesting party to enter the property to inspect the premises. Again, the party receiving the request may file an appropriate objection if, for example, the documents requested are not relevant to the case or are protected by privilege.

Often a request for production will go hand-in-hand with interrogatories. For example, in conjunction with an interrogatory about bank account balances, a party might request production of all monthly bank account statements over a specific time period. The request for production is an effective method of obtaining detailed financial information and can be extremely useful in gathering data about pensions and retirement benefits, life insurance policies, and so on. The documents and things being requested must be designated in the request, but can include existing writings, drawings, graphs, charts, photographs, phone records and other data compilations. Although there is no technical limit on the number of documents or things that can be requested, the other party is entitled to raise objections about any unduly burdensome discovery request.

The Request for Admission

The request for admission of facts is also served on the opposing party in the family law case. Rule 64 ARFLP. As a discovery tool, the request for admission sets forth statements that the receiving party must admit, deny, or object to. The party responding to the request for admission has to make reasonable inquiries into the information that is known to or readily obtainable by him or her. When the receiving party does not respond to a request for admission — that is, he or she doesn’t admit, doesn’t deny, and doesn’t object — then the statement is deemed admitted. Whenever a fact or statement is admitted to, it may be used as evidence in the trial.

Here is how the request for admissions helps a party in discovery. With a request for admissions, one party makes written assertions of fact (or assertions as to the genuineness of a document), and requests that the other party admit such assertions. For instance, a party is requested to admit that “on January 24, 2010, you withdrew $50,000 in cash from the marital bank account.” The answering party is to respond to each request for admission by specifically admitting or denying the matter, or by setting forth in detail why he or she cannot truthfully admit or deny the matter. The answering party is also permitted to raise objections to the request. If the opposing side fails to respond to the requests within a specified time, the assertions are deemed admitted. The assigned judge may consider the admitted facts to be conclusively proven for the purposes of the pending action.

Enforcing Discovery Requests

The subpoena orders a person to appear, testify, produce and permit inspection, copying, testing, sampling, and so on, of tangible things in the possession, custody, or control of that person. The subpoena may order the person to permit inspection of the premises, at a specified time and place. If a party fails to comply or respond to a discovery request, or does not disclose requested information, then he or she may be held in contempt for failure to obey orders and sanctioned at the court’s discretion. Furthermore, the court “shall assess an appropriate sanction… against any party or attorney who has engaged in unreasonable, groundless, abusive, or obstructionist conduct.” Rule 51(E).

Selected Arizona Rules of Family Law Procedure: