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.
MECHANISM OF DISCOVERY
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 has the right to object to discovery requests which are not “reasonably calculated to lead to admissible evidence.” Texas Rule of Civil Procedure 193.3(a); see In re National lloyds Ins., ___ S.W.3d ___ (Tex.2014) (No. 13-0761; 10-31-14); In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003). 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, 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. The Court may overrule some of Doug’s objections, but sustain others – this is on a case by case basis.
(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.
TYPES OF DISCOVERY
Discovery is not one “thing,” however. Discovery is 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 Texas Rule of Civil Procedure 194, and the content of the requests is limited to:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the responding party’s claims
or defenses (the responding party need not marshal all evidence that may be offered
(d) the amount and any method of calculating economic damages;
(e) the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person’s connection with the case;
(f) for any testifying expert: (1) the expert’s name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and (B) the expert’s current resume and bibliography;
(g) any indemnity and insuring agreements described in Rule 192.3(f);
(h) any settlement agreements described in Rule 192.3(g);
(i) any witness statements described in Rule 192.3(h);
(j) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills that are reasonably related to the
injuries or damages asserted or, in lieu thereof, an authorization permitting the
disclosure of such medical records and bills;
(k) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills obtained by the responding party
by virtue of an authorization furnished by the requesting party; [and]
(l) the name, address, and telephone number of any person who may be designated as
a responsible third party.
Texas Rule of Civil Procedure 194.2.
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. Interrogatories fall under Texas Rule of Civil Procedure 197.
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. Requests for Production fall under Texas Rules of Civil Procedure 176, 196, and 205.
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 prove, 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. Admissions are discussed under Texas Rule of Civil Procedure 198.
Deposition – you may have seen this on television. 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. They are discussed in Texas Rules of Civil Procedure 176, 199-203, 205, and 215.5. 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.
This may not come as shock to the reader, but people lie on discovery responses by omitting information, claiming not to have documents requested, or, even editing the documents before sending them back. In one case handled by this office, the husband swore up and down that he had no money in a pension account and refused to provide a statement. He eventually did provide a statement showing zero, but things did not add up with his other accounts. He then showed me a screenshot of his statement on his smart phone outside the courtroom where the balance was purported to be zero. I suspected the screenshot to be edited, and when I asked to have him show me the actual account and not just a screenshot, the husband went into a full-blown tantrum. Eventually, we found out he was hiding approximately $30,000.00 in that pension account.
The reason for that story is to illustrate that people will do just about anything to hide money. Thankfully, a subpoena can help clarify the matter, as it specifically requests documents and other evidence directly from a third party. While not technically a “discovery request,” it can be used in tandem with discovery to get to the bottom of the truth. See here for more.