Pre-Trial Discovery

According to Wikipedia: discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions. The US is unique among common law countries in having a discovery process.

In family court in Nevada, the judge will set a trial date and a discovery cut-off date once the parties indicate that they cannot reach a settlement (via a joint conference report). The trial may occur as far out as 6 months or more from the date of the joint conference report and discovery may end only 14-30 days before trial. Both sides then have this period to conduct discovery. The nominal purpose of discovery is to collect facts to build a case for trial.  In practice, discovery can become very expensive.  As Wikipedia states: The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other’s financial resources in a war of attrition. For example, one can make information requests which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on.

The major forms of discovery are: request for production of documents (RFPs), interrogatories, and depositions. Basically, each side can ask the other side to produce any document they wish (including electronic documents), can ask up to 20 questions, and conduct sworn interviews of witnesses that are recorded and can be produced as testimony at the trial. You are required to make your best efforts to provide documents, answer questions, and attend depositions. In theory, the court can fine a party for not responding to discovery requests (without very good reasons). The Nevada courts even have a discovery commissioner to hear complaints.

I say “in theory” because things work very differently in practice. I prepared my own RFPs and interrogatories using Bender’s Forms of Discovery to save on legal fees (even lawyers don’t make up their own discovery requests – they consult this manual). After 3 months, I received no response from her attorney and the discovery commissioner’s office never returned my calls.  With only 14 days to trial, I filed a motion (on an order shortening time) before the judge requesting that the opposition be found in contempt for not responding to ANY of my discovery requests.  The judge refused to hear the motion before trial. The opposition then filed a motion (on an order shortening time) requesting that the trial be delayed because I did not respond to THEIR requests (despite the fact they had received hundreds of pages of information from me). The judge granted their motion (forcing me to cancel an overseas business trip to attend the hearing) and delayed the trial another six months. My sin was not including monthly payslips from 4-5 years ago because our HR system did not have data going back that far. The judge determined that I did not make my best efforts to get the information (despite including five years of W-2 and 1040 tax returns). So, I was admonished despite the fact they had given me NO information.  They were not penalized in any way and I was ordered to continue paying 90% of my income in temporary support for another six months until the new trial date.

BOTTOM LINE:

1. Discovery requests are easy to make by using Bender’s Forms of Discovery.

2. Discovery can be very costly (particularly depositions where you must pay for your lawyer to sit through the testimony and a court reporter).

3. The court may decide your best efforts to get information are not your best efforts and fine/penalize you as it sees fit

4. The court may allow the opposition to delay and withhold information without penalty.

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One Response to Pre-Trial Discovery

  1. Marlin says:

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