Discovery Process

Discovery Process in Divorce

When parties are going through a divorce, they are entitled to obtain relevant information from their spouse to assist with their settlement or in preparation for litigation. This process is called discovery. This is where your attorney investigates all the facts and information to assist in settling or litigating your case.

1. Interrogatories: Interrogatories are written questions you may ask the other side to answer in writing under oath. These questions are served upon the other party at the time of filing or later in the case. The number of interrogatories in most cases is limited to 50 including sub parts and usually is required to be answered within 30 days of service. These questions can be highly effective in a case.
   
   Generally, the discovery period ends 6 months after the Defendant’s answer is due. In most all circumstances and after service, a party only has 30 days to respond to interrogatories. A party can object to the interrogatories under some circumstances. This is clearly an area where you need an experienced attorney.
2. Requests for the production of documents: One party requests documents, writings, photographs, emails, texts, phone records, receipts, bank records, account information, records, or other permissible and relevant items from a party in possession of them. These requests can be served upon the other party or a third party such as an employer or bank. There are many rules under Georgia law that must be complied with and an experienced attorney can guide you through this process. If you are served, we can also assist you with producing or objecting to producing documents. Requests for production can be very valuable in your case. In the event one party chooses to serve requests to produce on a non-party, the opposing party in the litigation must be served with a copy of the request as well. Additionally, according to Georgia law, parties should make all reasonable efforts to ensure that any responses to non-party requests are made available to all parties in the litigation. O.C.G.A. § 9-11-34 (c).
3. Request for Admissions: In addition to requesting that a party produce certain documents, other pieces of evidence, or answer written questions under oath, a party may request that the opposing party make certain factual admissions regarding the pending litigation.
   
   O.C.G.A. § 9-11-36(a): “A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters … which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.”
   
   If you are served with any of this discovery, it is important that you object or respond properly within the time frames permitted by Georgia law or there may be severe implications to your case. There are many rules and implications with discovery, and you need an experienced attorney to assist you in these matters.
4. Depositions of a person: Depositions can be highly effective in your case. The law allows for your attorney to require your spouse or other relevant party to sit for an oral examination. Your attorney can confront your spouse or other possible witness during the discovery period. This examination is done just as if the person was in trial. A court reporter shall be present and take down all the questions, answers, and objections. You can require the party bring relevant information to the deposition with them as well.
   
   Obviously, your spouse can require you to be deposed in the same manner. They can potentially take depositions of your friends, boss, co-workers, neighbors, to name a few, provided they have relevant information permissible under Georgia law. An experienced lawyer is essential in navigating this process, if it occurs in your case. The lawyers at Burns Smith Law, PC are knowledgeable and ready to help you. At a trial or a hearing in the action, all or part of a deposition may be used against any party who was present, represented at or had notice of the deposition, so long as the rules of evidence allow it, for either of the purposes listed below:
   1. To contradict or impeach the testimony of the witness; or,
   2. For any other purpose that the court approves such as: the court finds that the witness is dead; the witness is out of the country; the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; the party offering the deposition has been unable to procure the attendance of the witness by subpoena; the nature of the business or occupation of the witness makes it impossible to secure his personal attendance without manifest inconvenience to the public or third persons; or the witness will be a member of the General Assembly and that the session of the General Assembly will conflict with the session of the court in which the case is to be tried. O.C.G.A. § 9-11-32.
   There are many other ways to effectively use a deposition and the evidence it produces. All cases are different and how depositions or other discovery methods are used will be unique.

Compliance with discovery: When you are served with discovery requests, you are in immediate need of an attorney. There are strict timelines, usually thirty days, to respond. The consequences of a failure to respond or a late response can spell disaster in your case. For example, failing to properly respond to a request for admissions deems the request admitted. Failure to timely object to discovery that is outside the permissible bounds can cause a waiver to any objections. Attempting to respond and handle discovery requests without an experienced attorney can single handily cost you your case.

The skilled lawyer at Burns Smith Law strategically uses the discovery process to your advantage and fights against any discovery abuses attempted by the opposing party. You should discuss the discovery process in your meetings with your attorney.

Informal Discovery: Many of our clients will not go through all of the discovery methods we have outlined for you. When the case facts and circumstances allow, we contact the opposing party or attorney with efforts to customize informal requests for information. For example, often our clients have most of the information and only need a 401k statement or a tax return. In those types of cases a simple request may get the information without the need to spend time and money on the formal discovery requests.

While your case is pending in our office, we are always mindful that if the case could be settled on your terms, that is the best outcome. We are continually making efforts to resolve cases in that fashion. If your case has not settled and discovery is complete, it is time to mediate your case.