Chapter 17

Discovery

The Rules of the Supreme Court of Virginia provides for the process of discovery for parties in a lawsuit (including a divorce case) to gain information from each other and from third parties pertaining to the issues in the lawsuit. This chapter will answer your questions regarding interrogatories, requests for production of documents, requests for admission, depositions, and subpoenas duces tecum. Please note that these discovery options are only available once a complaint has been filed instituting a divorce case in the court.

17.1 What Are Interrogatories?

Interrogatories are written questions that each party is allowed to send to the other party. For example, if you don’t know how much your spouse earns, your attorney can send him an interrogatory requesting that information. Interrogatories are written by the attorneys and typically sent in a set of one or two dozen questions. The party receiving the interrogatories is required to provide, within twenty-one days, written answers under oath. ( Under oath means that the party providing the answers must appear before a notary and swear or affirm that the answers are true.)

17.2 What Are Requests for Production of Documents?

In most cases each side has documents that the other side needs to review to analyze settlement and to prepare for trial. Each party is allowed to send to the other side written requests for documents relevant to the issues in the case. The party receiving the requests is required to respond within twenty-one days, and to produce those documents in his or her possession or control.

17.3 What Are Requests for Admission?

Either attorney may send requests for admission to the other party requiring him or her to admit or deny certain statements relevant to the case. For example, your attorney may send a request to the other party asking him or her to admit the value of marital assets. This is often a good way to narrow issues for trial. For example, if the other party admits the value of the marital home (agrees with you) then an appraisal is not necessary and that issue is resolved. Requests for admission are in writing, and the other party has to respond in writing within twenty-one days.

17.4 What Are Depositions?

A deposition is a means of discovery in which the parties and their counsel meet at the office of one of the attorneys, with a court reporter present, and the attorneys question the person being deposed while the court reporter records the questions and the answers. The person being deposed has to swear or affirm at the beginning of the process that he or she will tell the truth. It is not unusual for both parties, and sometimes others, to be are deposed on the same day.

17.5 What Are Subpoenas Duces Tecum?

A subpoena duces tecum is a document prepared by one of the attorneys that is sent to a person or a company requiring the production of documents relevant to the case. This discovery device is similar to a request for production of documents, but a request for production is sent to a party to the case, and a subpoena duces tecum is sent to a nonparty. For example, your attorney may decide to send a subpoena duces tecum to your spouse’s employer to obtain his employment contract, benefit information, and specific work schedule.

17.6 How Long Does the Discovery Process Take?

This varies from case to case as there is no fixed duration provided by the Rules of the Supreme Court of Virginia. Once a trial is scheduled, it is common for a scheduling order to be entered by the judge providing time limits for the completion of discovery.

17.7 My Lawyer Insists That We Conduct Discovery, but I Don’t Want to Spend the Time and Money on It. Is It Re­Ally Necessary?

In most divorce cases each side needs information from the other in order to analyze settlement options and to prepare for trial. Your concern is legitimate as discovery can be very expensive. It is important to work with your attorney throughout your divorce case to make sure that appropriate cost/benefit decisions are being made. For example, if there is $100,000 or custody in dispute, it makes sense to be willing to spend more time and money than if only $5,000 or a minor visitation issue were in dispute. It is important that your attorney tailor his or her approach to the specific issues and disputes in your case, and your preferences.

17.8 Is There a Way to Gain the Information My Attorney Needs Without the Expense of Discovery?

You can help control the expense of discovery by providing as much information as possible to your attorney. The more complete and better organized the documentation you provide is, the less time your attorney will have to spend. In addition, you and your spouse can cooperate in freely sharing information between you, which should also reduce attorney’s fees.

17.9 I Just Received From My Spouse’s Attorney Interrogato­Ries and Requests That I Produce Documents. My Law­Yer Wants Me to Respond Within Twenty-One Days. I’ll Never Make the Deadline. What I Can Do?

You need to make a good-faith effort to provide what you can within the deadline. Your attorney should still respond within the twenty-one day deadline providing all available information, and stating any objections that he or she may have.

The initial responses can then be supplemented once you are able to complete your work.

17.10 I Don’t Have Access to My Documents, and My Spouse Is Being Uncooperative in Providing My Lawyer With Information. Can My Lawyer Request Information Directly From an Employer or Financial Institution?

Yes, using a subpoena duces tecum which requires the person or corporation to produce the documentation.

17.11 My Spouse’s Lawyer Intends to Subpoena My Medical Records. Aren’t Those Private?

Your medical records may be relevant to issues in the case, including custody and visitation, equitable distribution, and spousal support. If your physical or mental condition is at issue in your case, then the opposing counsel will be able to obtain relevant records.

17.12 My Spouse’s Attorney Has Sent Me Interrogatories and Requests for Production of Documents for Information That Is Not Relevant to Our Divorce Case. Do I Have to Respond?

Your attorney will review every discovery request from the other party, and will make objection to any interrogatory or request that he or she feels is improper based upon Virginia law.

17.13 My Spouse’s Attorney Objected to Many Interrogatories That My Attorney Believes Are Legitimate and Proper. Is There Any Way We Can Force My Spouse to Answer?

Yes, your attorney will first send a letter to the other attorney requesting complete responses. If the other attorney persists with his objections, your attorney can file a motion to compel and obtain a hearing at which she will ask the judge to order your spouse to respond.

17.14 I Own My Business. Will I Have to Disclose My Business Records?

If your business records are relevant to your case—which they almost certainly are if your case involves equitable distribution, spousal support, or child support—then you will have to produce those records.

17.15 It’s Been Two Months Since My Lawyer Sent Interrogatories to My Spouse, and We Still Don’t Have His Answers. I Answered Mine on Time. Is There Anything That Can Be Done to Speed up the Process?

Yes, your attorney may file a motion to compel and obtain a hearing to ask the judge to order the other side to respond. Your attorney should send a letter to the opposing counsel requesting responses before he files the motion to compel.

17.16 What Is the Purpose of a Deposition?

The purpose of a deposition is to gain information helpful to your case and harmful to your spouse’s case. The specific purposes of a deposition vary from case to case and witness to witness. Your attorney may be seeking answers to questions and specific admissions.

17.17 Will What I Say in My Deposition Be Used Against Me When We Go to Court?

Possibly. The transcript of your deposition can be admitted into evidence at trial, so the judge will become aware of your deposition testimony if your deposition transcript is admitted into evidence.

17.18 How Should I Prepare for My Deposition?

You should talk to your attorney about the exact procedure so that you fully understand the process in advance. You should receive advice from your attorney about what approach you should use. You are under oath and you must tell the truth, but with many questions you have the option of providing short, limited answers, or longer, more detailed and explanatory answers. You should be polite and avoid sarcasm. You don’t want the judge to read rude or sarcastic answers, as you want the judge to have a favorable impression of you.

Finally, the more fully you understand your case, the exact issues, the facts, and the applicable law, the better prepared you will be. Be truthful as your integrity is paramount. You want the judge to trust and believe your testimony.

17.19 What Will I Be Asked at My Deposition?

Your attorney will help you prepare based upon the exact issues in the case. If your case involves custody and visitation, equitable distribution, or spousal support, you should be familiar with the statutory factors relevant to those issues.

17.20 Can I Refuse to Answer Questions at My Deposition?

The general rule is that you have to answer the questions. However, your attorney can object if any of the questions are improper. And you can refuse to answer based upon the Fifth Amendment to the United States Constitution if your answer would implicate you in a crime. The Fifth Amendment comes up most frequently in divorce cases regarding adultery. If adultery is an issue in your case, be sure to discuss this with your attorney in advance of your deposition.

17.21 What if I Give Incorrect Information in My Deposition?

You are under oath so you should not intentionally give incorrect information. If you later learn that you inadvertently gave incorrect information, let your attorney know so that she can advise opposing counsel and correct the record.

17.22 What if I Don’t Know or Can’t Remember the Answer to a Question?

Then that is your answer. You are not required to guess or speculate.

17.23 Are Depositions Always Necessary?

No, depositions are optional. A deposition should be taken when that is the best way to gain the information your attorney seeks, or if it’s important to determine exactly how a party or other witness would testify.

17.24 Does Every Witness Have to Be Deposed?

No, your attorney should depose only those opposing witnesses who are important enough to justify the expense associated with a deposition. A deposition is probably not necessary if the witness is willing to be interviewed by your attorney.

17.25 Will I Get a Copy of the Depositions in My Case?

That depends upon whether transcripts are ordered. The court reporter charges a fee for coming to the depositions and making a record of the questions and answers. The court reporter charges an additional fee for creating a transcript by typing the questions and answers. You will receive a copy of the depositions only if your attorney orders and you pay for the transcripts.