What Is Discovery?

Discovery is basically the process by which a lawyer asks questions of your spouse (or other parent/party) and is legally obligated to answer truthfully under penalty of perjury. There are two primary methods discovering this information and potential evidence: (1) written discovery and (2) oral depositions.

For the Court to make informed rulings, both parties need to be able to put on accurate evidence in support of their claims. Therefore, when there are contested issues in a case, discovery is a very valuable tool when properly utilized. It can be the instrument with which critical facts and issues come to light.

You will be a critical resource for both:

• crafting discovery requests if you decide you want to send discovery.  Typically, our

office will first prepare a draft of the requests and then send the same to you to add to, change, or even you may ask that we delete certain questions because they are not relevant to your case (eg. neither party has real property and, thus, there is no need to ask for documents related to real property); and

• responding to discovery requests if they were sent to you from your spouse or other

parent/party.  If we receive requests from the other side, we will likely send them to you first to have you start to fill in responses and/or gather documentation.

Please note: when discovery is propounded (sent), a party is limited to using as evidence in a final trial those documents and answers he/she produced in response to discovery requests.  Therefore, it is every important to answer fully and completely and to continue to supplement as necessary answers/documents prior to trial.

1. WRITTEN DISCOVERY

Requests for Disclosure—Requests for Disclosure contains requests that are specified in Rule 194 of the Texas Rules of Civil Procedure and is a written request for information that is designed to afford parties basic discovery of specific categories of information, without preparation of a lengthy inquiry, and without objection or assertion of work product by serving the other party the following request:

“Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule 194, and then cites the applicable subsections it is requesting, for example, 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g).

(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 at  trial);

 

(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:  the expert’s name, address, and telephone number; the subject  matter on which the expert will testify; 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; 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; and
(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.

Interrogatories (Written Questions)—Interrogatories are a list of questions that may inquire about specific legal or factual contentions; as well as asking your spouse (and/or other parent/party) to state the legal theories and to describe in general the factual bases for the party’s claims or defenses and we are limited to 25 of these questions.  Examples of Interrogatories are:

If you propose that you be awarded more than 50 percent of the community estate, state in general the legal theories that support your proposal and identify facts of which you are specifically aware that establish, demonstrate, or prove that proposal.

 

AND

 

State the schedules of possession and other access of the child for you which you contend would be in the best interest of the child, now and in the future, the facts which support your position, the facts you believe support your position which were reported to you by others, and the identity of any such persons who reported facts to you.

Requests for Production of Documents—In a divorce you are entitled to inspect, sample, test, photograph and copy documents or tangible things that are within the scope of discovery and within the person’s possession, custody, or control. Documents and tangible things include papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data, and data compilations. Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession and access of the item.  The list of items a divorce litigant might need is a long one. Reports of experts, documents describing a spouse’s retirement or pension plan, data compilations such as mortgage amortizations, present value calculations, and the like, medical records, and insurance policies are likely candidates for production requests.  An example of a Request for Production is:

Please produce the following:

Secured Debts.  Records of debts or liens against any property owned by you or your spouse,

including mortgage documents, liens, debts, notes, pending or expected claims against said

property, money borrowed against said property and the like.

Requests for Admissions–-A party may be required, by the use of the requests for admissions’ procedure, to admit the truth of any matter within the scope of discovery, including:  statements of fact; statements of opinions; applications of law to fact; and genuineness of documents.  When a matter is admitted following a request for admission, that matter is conclusively established in the pending litigation as to the party making the admission unless the court permits the party to withdraw or amend the admission.  An example of a Request for Admissions is:

Admit or Deny:

You were fired from your employment in July of 2019 for having an ongoing affair with your coworker and subordinate, Jane Doe. 

1. DEPOSITIONS

A deposition may be on written questions or on oral questions. In an oral deposition, questions are usually asked directly to the deponent, whose answers are recorded by a stenographer or court reporter, or may be recorded by other means, including audiotape or videotape, and may be even be conducted over the phone. An oral deposition offers the opportunity for thorough follow-up on the responses of the witness to particular questions. This is not possible in a deposition by written questions. In addition, the oral deposition taken directly provides counsel an opportunity to observe the manner in which the witness answers the questions and, if the witness is a party, how his or her attorney handles both the witness and himself or herself. Although an oral deposition is more expensive, it is usually preferable to a deposition on written questions.

In a deposition on written questions, the questions are attached to or included in the notice of intent to take a deposition on written questions. The stenographer (court reporter) then reads the questions to the deponent, along with any cross questions, redirect questions, and recross questions timely served after the notice of intent to take the deposition was received  A deposition on written questions is most valuable as an inexpensive way to obtain and authenticate documents in the possession of nonparties, and to establish evidentiary facts about which there is little controversy. Moreover, a deposition on written questions or a deposition by telephone may be the only practical alternatives when the witness’s residence is distant. However, unlike an oral deposition, a deposition on written questions does not offer the opportunity for follow-up on the witness’s responses to particular questions. Nor does a deposition on written questions give counsel an opportunity to observe the manner in which the witness answers the questions and, if the witness is a party, how his or her attorney handles both the witness and himself or herself.

Selecting the better form for a deposition depends primarily on who the deponent is and why the deposition is being taken. Likely individuals for deposing include the client’s spouse, a social worker, a mental health professional, an appraiser, an accountant, a pension-plan administrator, or even friends, co-workers, and neighbors of the parties. If the testimony is sought more for introduction at trial (as opposed to investigation into the facts), a videotaped deposition, although more expensive, is a better choice. If the testimony is sought simply to authenticate a document or gather facts and figures, a deposition on written questions would seem to be the most efficient form.

• Additional Discovery Measures

The establishment of critical evidence may also be obtained by less common methods, like having the court order both parties to file a sworn inventory and appraisement of all property, real and personal, owned or claimed by them. The court may order a professional conduct a social study that is to be paid for by one or both of the parties, or similarly order a physical or mental examination. You may obtain sworn witness statements, as well as subpoena records held by third parties to, and even compel them to attend a deposition.

The trial court may limit the discovery methods permitted by the Texas Rules of Civil Procedure if it determines, on motion or on its own initiative, that the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

1. Responding to Discovery Requests

A party must respond to written discovery in writing within the time provided by court order or the procedural rules. When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made. This rule imposes a duty on parties to make a complete response to written discovery based on all information reasonably available, subject to objections and privileges.

A party must make any objection to written discovery in writing. The party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request. A party must comply with the part of the request to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection. In other words, an objection to written discovery does not excuse the responding party from complying with the request to the extent no objection is made. But a party may object to a request for all documents relevant to the lawsuit” as overly broad and not in compliance with the rule requiring specific requests for documents and refuse to comply with it entirely. A party may also object to a request for a litigation file on the ground that it is overly broad, and the party may assert that on its face the request seeks only materials protected by privilege.  A response may be amended or supplemented to state an objection or basis that, at the time the response initially was made, either was inapplicable or was unknown after reasonable inquiry.

1. Addressing Noncompliance, Evasion, and Deceit

A party may also be sanctioned, after notice and hearing, for abusing the discovery process by resisting discovery or responding in a way that is unreasonably frivolous or done for the purpose of delay. Sanctions may include one or more penalties as the court deems fair, including fines, fees and costs, disallowing the disobedient party from using further discovery of any kind or of a particular kind, ordering facts or matters taken as established in accordance with the claim of the party obtaining the order, prohibiting the disobedient party from supporting or opposing designated claims or defenses or introducing designated matters of evidence, striking out all or part of the disobedient party’s pleadings, staying further proceedings until the order to comply is obeyed, even dismissing, with or without prejudice, all or part of the action, or rendering a judgment by default against the disobedient party.