Discovery is very common in divorce in Texas, and in lawsuits in general. What discovery is – in the basest of terms – is an exchange of information between the parties, including facts and legal theories they bring to up in Court, exhibits, witness lists, and so on. Unlike television, there are no surprises in Court. Both parties know well in advance what the other one is going to argue (largely because of discovery). As such, lawyers make use of discovery frequently, as it helps them to prepare for Court.

Discovery is optional to propound (that is, file unto your opposing party), meaning you do not have to do discovery if you do not wish to do so. However, if the opposing party has propounded discovery on you, you have to respond to it.

So if you have been served with discovery, there is no need to panic. It is nothing out of the ordinary, as you will see below.

The mechanism for discovery is simple. For this blog entry, let us use the fictional couple Doug and Judy, who are going through a divorce. Judy has the option to propound (again, file) discovery unto Doug, and she does so. Once discovery is filed by Judy, Doug has 30 days to respond. The deadline can be extended by agreement of the parties, or, by order of the Court.

Doug does has the right to object to discovery requests which are not reasonably calculated to lead to admissible evidence. Meaning, Judy cannot make discovery requests about whatever she wants – she has to tailor it to be specific to the lawsuit. There are other objections under Texas law under multiple of reasons, but the doctrine of the request being reasonably calculated to lead to admissible evidence is typically most commonly used in objections.

If there are objections made by Doug which Judy does not agree with, Judy may then file a Motion to Compel, seeking a response. The Court may overrule Doug’s objections and force him to respond. Or, the Court may overrule some of Doug’s objections, but sustain others – this is on a case by case basis. Or, the Court may sustain Doug’s objections and Doug would not have to provide the information.

(Similarly, if Doug simply fails to provide responses within the 30 days allotted, Judy can file a Motion to Compel. It is worth noting that should Doug fail to respond in 30 days and fails to get an extension agreement from Judy or an extension order from the Court, Doug generally waives all his rights to object on discovery. Therefore, it is imperative not to be late on discovery responses.)

If Doug still does not respond on items that his objections were overruled by the Court, Judy can then file a Motion for Sanctions, seeking to have Doug sanctioned for failing to follow the Court’s prior order compelling him to respond.

Discovery is actually a collective term which describes different types of requests for information and documents which can be requested. The ones allowed under Texas law are discussed below.

Request for Disclosure – this is perhaps the most commonly used form of discovery. It is standardized under Texas law, meaning Judy’s lawyer would not be choosing any questions to send as part of this discovery, but, using a “pre-made” format. Requests for Disclosure are listed under Rule 194 of the Texas Rules of Civil Procedures.

Since a Request for Disclosure is standardized, there is generally no fighting about it. If it is requested, it must be responded to. The disclosure request is request for legal theory, general facts, and witness information, and it is the bare minimum of discovery.

Written Interrogatories – generally put, this is a request for information and facts in forms of questions. In a divorce, interrogatories typically question the other party about their finances, adultery, custody, etc. In a divorce, common questions include but are not limited to disclosure of bank accounts, business interests, questions about sexual activity with other parties (i.e. adultery)., drug use, and so on.

Request for Production – this is a request for inspection of documents, and normally the other party responds by sending over documents in hard format, or electronically (such as .pdf format). Typical requests in a divorce would be asking to see one’s bank statements for the last few years, copies of 401k statements, etc.

Request for Admissions – this is a request for admissions by the other party. Utilizing our fictional couple, Judy would try to ask Doug to admit to certain things. For example, Judy can ask Doug to “admit that on [date within the marriage], you had sexual intercourse with a prostitute.” If Doug admits this, then it can be used against him. If Doug denies this but Judy has proof, Judy can then impeach Doug’s credibility in Court by showing that he lied in his discovery responses. A caveat for admissions is that if a party does not respond within 30 days of being propounded admissions, the admissions may be deemed, meaning that they can be assumed to be admitted by the Court.

Deposition – Deposition is part of discovery. Deposition is when a party (opposing party or a witness) is questioned by an attorney under oath, and the answers are recorded/transcribed. These answers may later be used in Court to catch a witness contradicting themselves, admitting something. and may generally be used to further investigation of the case. Depositions are useful, but they tend to be expensive, and not as common in divorces. Depositions are a creature of their own, and have a whole area of law devoted wholly to them. They will be discussed in a later blog entry.

Medical Records – in cases where one’s medical records are important evidence, a party can make a demand unto the other party to sign authorizations and releases for medical records.

Entry on Land – another uncommon discovery form is entry on land, where a party can request entry on land to inspect, measure, survey, photograph, test, sample, and otherwise review the property.

Subpoenas are requests for information and testimony sent to third parties to corroborate or challenge the positions taken by the opposing party. See here for more.