Examining Discovery in Family Law
Discovery refers to the discovery process undertaken in California family law cases. Discovery consists of formal and informal methods of allowing each side to investigate information that may be relevant to the issues in the case. "Informal" discovery includes reviewing public records and materials that are easily accessible (for example, driving directions). "Formal" discovery refers to the process of obtaining information that is typically not available. For instance, one spouse may sent the other a Request for Production of Documents to obtain bank records or tax returns. Both sides to the litigation cannot simply wait until the day of trial to disclose their discovery materials. California law imposes certain discovery deadlines and the parties or their counsel are required to respond to discovery requests on a timely basis. Parties who fail to comply with formal discovery requests may have these documents excluded from evidence at trial .
There are several different types of discovery in California. The most common forms are interrogatories, requests for production of documents, depositions and requests for admission (RFA’s). Interrogatories refer to written questions which require a written answer. Requests for production of documents are written requests for documents or items relevant to the case. A deposition is a formal interview during which a court reporter preserves the identity of the people present and the conversation that occurs. Certain topics may be off the record (like the level of spousal support in a Dissolution of Marriage). RFA’s allow a party to send written requests for admission or denial. For example, a party may ask whether certain income was paid during a specific year. Many cases are settled at or even before trial after discovery reveals the true facts of a case.
Different Types of Discovery Tools Used in Litigation
California family law discovery rules provide a variety of tools to gather information and facts related to litigation. Below are some of the main forms of pre-trial discovery available to family law litigants in California:
INTERROGATORIES
Interrogatories are one of the most common forms of discovery, and by far, they are the most cost-effective way to gather general information and facts that can be provided in responding answers. Questions may be asked about the marital estate, taxes, income, assets, debts, values, and any other fact necessary to further the litigation.
REQUESTS FOR PRODUCTION
A list of documents may also be requested from the other party through a Request for Production of Documents. Requests for Production of Documents can be used to identify the following, among other items:
· Income information
· Property and asset information
· Bills
· Bank statements and tax returns
· Receipts
· Documents of any kind
DEPOSITIONS
All discoveries may be used to explore any topic or matter, but depositions are a great discovery tool to obtain factual information from parties or third-party witnesses. Each party has the right to conduct oral depositions. The attorneys for the parties take turns asking questions of the witnesses under oath, with a court reporter present to transcribe the conversation. Unlike interrogatories, parties have to answer questions put forth by attorneys in person at a deposition, which makes a witness’ testimony more binding than an interrogatory answer. However, if the deposition testimony conflicts with previously provided interrogatories, the written testimony may be corrected by way of errata for clarity of explanation in response to the line of questioning during the deposition.
REQUESTS FOR ADMISSIONS
Requests for admissions can be used to force the other side to either admit to certain facts or to clarify their positions on various issues. In other words, it is a method for clarifying factual positions prior to a trial. It may be used to verify the content of documents and to clarify contract or agreement provisions.
DEPENDENCY EXAMINATIONS
Psychological evaluations by a qualified mental health professional may be requested to assess the psychological wellbeing of a party or child in the case. In particular, they are often requested in contested child custody matters to determine the parenting ability of the parties.
EXAMINATION OF EMPLOYERS AND FINANCIAL INSTITUTIONS
The last, but not the least, is the issue of examination of employers and financial institutions. In other words, the Third Party will be asked by way of a subpoena or other written request to provide records to a party in the case. The third-party will have to provide the records unless there is good cause not to, or they are told otherwise by court order.
Rules on Discovery in Family Law
The California Rules of Court govern the discovery process and impose strict timelines and evidence preservation rules on parties involved in family law litigation. A major change happened with the 2012 revisions to the California Rules of Court Rule 13.5, and the adoption of new Rule 13.10. The 2012 revisions to Rule 13.5 narrowed the definition of a "confidential" document for the purposes of an appeal. In Euline v Euline, M.E. (2011) 197 Cal. App 4th 314, the court explained that such documents would no longer have to be filed under seal, unless there was a specific statute or an order from the judge. The new Rule 13.10 sets forth rules for obtaining the reporter’s transcript at family law trials. Family law trials typically involve testimony as well as documentary evidence. Under the new Rule 13.10, when the trial court records the court proceedings using court reporters, the parties do not have to pay for the transcript or for the court reporter’s services. Instead, the transcripts are provided to family law litigants through the official electronic recording system.
Further, a party who has served written discovery, received an objection to the discovery, and who decides to meet and confer regarding the objection prior to bringing a motion to compel, must do so within 45 days after service of the objection. (California Code of Civil Procedure § 2016.040) A party is under an affirmative duty to mitigate damages, and a party who fails to do so would be hard pressed to recover those damages later. (California Family Code § 2107(d)) When a court orders inspection of a party’s assets, it will ordinarily limit the inspection to the relevant time frame which will often be limited to the last three years even in the context of a long-term marriage. A court may also compel a later disposition of some income even where the earlier disposition of the funds was based upon a party’s legal entitlement to do so pursuant to a binding agreement, when an earlier disposition of the income will cause the party to suffer extreme prejudice. (Dumon v Dumon (2009) 177 Cal. App. 4th 1122, 1133-1135). The general rule is that any property acquired during marriage, whether together or separately, is presumed to be community property since the effective date of marriage. (California Family Code § 760). While often the characterization issue is disputed, generally, community property is earned income, and separate property is anything else.
There are a number of non-exhaustive reasons for which the Family Court can order non-disclosure of an asset or a document from disclosure in an action. The requirement of filing a Statement of Assets and Debts and Disclosure Reports are evidentiary in nature and impose penalties upon a party who fails to comply with the requirements of full disclosure. Failure to comply with these requirements could result in sanctions or even a default judgment against the party. The courts, however, recognize that there may be circumstances in which a party may be unable to comply with Sedgwick.
Navigating Common Discovery Issues and Solutions
The discovery phase of family law cases often surfaces many challenges for The Court and for the practitioner. It is also a time when many family law cases are settled.
Generally, there are three common problems faced by litigants during the discovery phase of litigation:
- People lie. It is unfortunate that your client may not have told the truth about his or her financial situation. This is not uncommon because litigation is adversarial by nature, so the unrepresented litigant is at a disadvantage.
- Often the other party will object to requests for production or interrogatories. These objections should be met with answers from the other party that is full and complete. Sometimes however, the objections are completely unfounded. In this case, a meet and confer with the opposing party may resolve the objection, but often it does not.
- Towards the end of litigation, opposing counsel may try to delay discovery by using frivolous objections or refusing to answer unless the questioner agrees to withdraw a certain percentage of their questions.
The Family Code 2016 generally governs these issues. Subdivision (m) of section 210 for example provides that "[t]he disclosure of information concerning income and assets shall be made in sufficient detail to permit verification." Subdivision (l) of the same section explains that "formal discovery components such as document demands, interrogatories, and depositions shall be made and responded to honestly and fairly, and expressed as broad and inclusive of all matters that are relevant and necessary to the determination of spousal or child support."
One way to ensure that any interrogatory is full and complete is to use a verbatim interrogatory. Verbatim interrogatories require a party to respond with all the information required of the basic interrogatory with the addition of a direct question at the beginning of the interrogatory. It would look like the following:
What are the names of all persons with knowledge of the facts of this case?
a. Identify what information is known to you.
b. State all facts.
When answering the above interrogatory, the answering party must respond with all persons with knowledge of the facts requested. The use of this approach is encouraged, as it is guaranteed to force certain information regarding the meeting of witnesses and why those witnesses are important. It is also evidenced that the use of verbatim questions is more persuasive to a judge than simple interrogatories. Clients may also enjoy filling in lists of names more than answering broad questions. This will help them understand the importance of the discovery phase while also delivering effective results.
Keeping Confidential Information Secure
From the outset of a California family law case, the parties have a public duty to disclose all financial information and facts material to the case in the Petition and the income and expense declaration. In most family law cases, the parties prefer to keep certain information private. For example, a party may have intellectual property rights that could have a negative pecuniary impact on the business if disclosed. There may be privacy issues, particularly with regard to children. California has adopted numerous Family Code sections and the California Rules of Court to allow the parties to protect certain confidential information acquired during the discovery process. See Family Code Sections 2032.510 , 213, 217, 215, 2019.1, 3111, 3118, 3119, 7650-7656, 217 and 1102; CCP Section 2031.060, and CRC 2.550-2.551. Generally, to protect confidential information, a party files a motion to deem the information confidential. Such requests include declaratory statements and citations to the statute codifying the request. Good cause declarations are not necessary, although they may lend further support for such motion. Once the hearing has concluded, and the court grants the request, the record regarding the confidential matters is sealed. The Clerk of the Court handles depository matters as well as the courts surface-level at the clerk’s office.
How Attorneys Can Best Use Discovery
It is clear that California law requires litigants to engage in discovery. As noted above, even if the Respondent takes no action, the law requires the Court to provide an opportunity to conduct discovery before the final trial. In addition to litigants being required to conduct discovery, attorneys are also ethically bound to engage in and facilitate discovery. California Rule of Court Rule 3.1010 provides in pertinent part:
(b) Duty of attorney to meet and confer
(1) No later than the date of the case management conference under rule 3.721 or earlier if ordered, the parties must meet and confer to consider the following:
(A) Discovery issues, including issues relating to:
(i) Scheduling;
(ii) Need for and timing of written discovery;
(iii) Use of expert witnesses;
(iv) Electronic discovery; and
(v) Discovery of electronically stored information (ESI);
(B) Stipulations arising from meeting and conferring that may obviate motions to compel and motions for protective order.
(2) The parties may meet and confer for purposes of subdivision (a) with or without attorneys.
(3) At the meet and confer process the parties must:
(A) Provide a high level description of all known ESI likely to be discovered;
(B) Discuss the preservation and collection of ESI, including the location and means of collection, a timeline for retention of the ESI, search terms, sources for collection, and any other issues related to the ESI; and
(C) Consider cost-effective approaches to ESI preservation and collection.
The attorneys also have a continuing obligation to meet and confer with the client’s spouse on discovery issues.
Midlife Divorce Law advises that failure to properly handle discovery depositions can have devastating consequences. They provide the following sample scenarios from a blog they recently read:
Scenario 1: Wife is scheduled to be deposed on a Tuesday, and husband’s attorney writes his questions to be asked at the deposition. On Thursday of the week before the deposition, urgently busy with another trial, she hands a colleague the page full of questions and asks him to take her place.
Scenario 2: Deposition of a witness is scheduled for a Monday morning. On Friday, the Friday before the Monday morning deposition, the attorney handling the case has to go to a client’s funeral out of state.
Scenario 3: This time, it’s not the witness’ deposition, but the deposition of Husband himself. And it’s a Friday morning, and the attorney has a client coming the same day with another divorce case that she needs to prepare for. The client wants the attorney’s undivided attention, so she asks her partner to take Husband’s deposition, and he agrees.
It is understandable why these situations may arise. Attorneys have competing demands on their time, and unexpected issues/litigation may arise. That said, attorneys must ensure that they have the time to properly prepare for the deposition. Given the consequences that can arise from improper preparation, you need to ensure that you have the time to meet and confer with the client’s spouse to properly prepare. If not, appoint co-counsel to take over. Associate counsel can assume the task of preparing for the deposition subject to your review. You remain the attorney of record to direct the flow of the litigation, but the associate handles the details of the discovery away from your desk.
Recent Developments and Cases Relating to Discovery Rules
The landscape of California family law discovery rules has been shaped by recent updates and noteworthy cases. Amendments to the California Rules of Court, particularly those outlined in the 2013 family law code revisions, have clarified many aspects of the discovery process. For example, recent revisions to Family Code Section 2104 now allow California’ s courts to impose "evidence sanctions" in family law proceedings for failure to disclose or comply with financial disclosure requirements. In the past, discovery violations were sanctioned through monetary compensatory sanctions or attorney’s fees, but not evidentiary sanctions. "Under evidence sanctions, the court may raise a presumption against the party who fails to make timely disclosures, and the court may refuse to allow the party to support or oppose the relevant issue." (Family Law Discovery: Rules, Practice and Procedure [2017] 2:100.) This means that if a parent intentionally fails to disclose income, they might face losing time with their child or be barred from having shared or full custody.
Further, the repeal of Family Code Section 2107 has impacted how and when parties may request certain information. (Fam. Code, § 2106.) There was no formal procedure for requesting all available documents relevant to a person’s income information prior to the amendment of Section 2107, but this is no longer an issue. In California rules of court are now explicit that a party may seek all available documents that would provide an accurate income information to calculate child support. This requirement seems intended to make clear that even documents not necessarily listed in the Code may be discoverable, if relevant to the inquiry.
Recent discovery disputes are not limited to practice and procedure. In 2018, the California Supreme Court addressed a recent discovery issue in Family Code § 760 which defines the community property of a married couple as "all property, real or personal, wherever situated, acquired by the couple while domiciled in this state." In equal division of assets and debts, the community estate includes both separate and community property. Starnes v. Starnes concerned whether the trial court acted permissibly in ordering the addition of a new "dummy owner" to a trust as part of its property distribution. (Starnes v. Starnes [(2018) 22 CAL Rptr 3d , 858-996].) The Court held that the trial court’s action was proper, allowing the reallocation of a separate property asset to the community estate. (Ibid.) The Court examined the legislative history and determined that the Legislature intended the community property statutes to be applied with flexibility to achieve the fundamental purpose of imposing a relationship-dependent status on the ownership of property. (See Fam.C. § 760.) This case provides practitioners with a strong tool to protect their client’s interest before and post-judgment.
In addition, the rules governing nondisclosure agreements have changed slightly as well. In In re Marriage of Crego, the Second Circuit Court of Appeals held that "The plain language of [Family Code] sections 2102 and 2103 means that, to escape disclosure obligations, a party signing the PCNA must provide nonprivileged and relevant financial documents to the other party concurrent with the spouse’s signature." (In re Marriage of Crego (2014) 224 CA4th 594.) The Court explained that "the linking of [Family Code] sections 2102, 2103, and 2104 provides bigger teeth to the rules regarding PCNAs, which is especially useful in the context of communities in the business of trading securities." (Id. at p. 599.) Therefore, in order to create a valid Premarital Confidentiality and Nondisclosure Agreement ("PCNA"), the spouse for who the agreement is intended must still make a full and fair disclosure of his or her finances. Failure to do so could invalidate the nondisclosure agreement and divulge otherwise confidential information.
California’s discovery rules continue to evolve, and practitioners must be cognizant of recent changes in the case law in order to properly advise the courts and their clients. The rules encompassing family law discovery are broad, encompassing a range of records and documents. In a family law trial, sometimes the most minute detail can mean the difference between a million-dollar award or a modest amount. Proper due diligence in the family law discovery process can prove essential to a favorable outcome for parties and their children.