The term “discovery requests” refers to the collective efforts litigants or their attorneys make to obtain information and evidence related to the contested issues to prepare for a trial. It broadly includes requests issued (or “propounded”) to the other litigant(s) in a case and/or to third parties who may possess important information or evidence. Depending on the issues in a case, discovery can be the most expensive and time consuming stage of litigation. It also tends to be one of the greatest sources of conflict between the parties.
Discovery Requests in Arizona Family Law Litigation
Discovery should conducted in every family law case where there is any factual or legal dispute. The scope of discovery is controlled by Rule 51. The most commonly used discovery requests in Arizona family court include:
- requests for production;
- requests for admission;
- deposition; and
Each type of discovery request functions as a unique tool used to obtain specific categories of information or evidence, and each is subject to unique limitations.
Interrogatories, for example, are written questions a party must answer under oath. These can include standardized or uniform interrogatories or questions more specifically catered to the unique facts and circumstances of the case, called non-uniform interrogatories. Pursuant to Rule 61, a party may serve up to forty (40) total uniform and/or non-uniform interrogatories. The party must receive the other party’s consent or permission from the family court to ask more than forty interrogatories. Even counting interrogatories can be contentious because subparts of the uniform interrogatories typically do not count as discrete or separate questions, while subparts of non-uniform interrogatories may count as individual questions. Once served upon a party, he or she typically has forty days to fully respond unless a different timeframe was stipulated between the parties or ordered by the court.
Requests for production (or “RFP”) are issued pursuant to Rule 62, and generally ask a party to produce specific categories of documents or other records. An example might be a party to a divorce who requests business records from his or her spouse necessary to ascertain the value of the business. Other categories of records commonly requested include income information (pay stubs, complete tax returns), financial account records (periodic statements from checking, savings, securities/investment accounts, etc.), and indebtedness (periodic statements for credit cards, mortgages, loans, etc.). This is not meant to function as a comprehensive list as discovery should be catered to the facts and issues of each unique case. Like interrogatories, the receiving party typically has forty days to produce the documents and records requested.
Most family law attorneys use requests for admission (or “RFA”) less frequently than the other discovery tools available. Pursuant to Rule 64, up to twenty five (25) requests for admission can be issued to ask a party to admit the truth of a certain allegation or the authenticity of documents or other evidence. When RFAs are used in family law litigation, it is often for futile attempts to induce admission of an outcome-determinative fact or one that would incriminate the opposing party. A family law attorney might ask the opposing party to admit that he or she recreationally uses illicit drugs. Generally this type of request is frankly pointless because the answering party is highly unlikely to admit anything so obviously damaging and while dishonest answers can be used to impeach a party’s credibility, credibility rarely determines the outcome of the case. RFAs are subject to the same forty day response period as other discovery requests; however, unlike other requests, if the RFAs are not answered during that timeframe, unanswered requests may be deemed admitted.
There are two types of “deposition” available to family law litigants—oral examination and written question. Oral examination is what people most commonly think of when they hear the word deposition. Pursuant to Rule 57, a party or witness may be questioned for up to four (4) hours by the other party or an attorney. A party who wants to conduct a deposition must give the deponent (the person to be deposed or questioned) at least ten days notice prior to the scheduled date. Depositions are conducted under oath and usually recorded by a court-approved stenographer (court reporter) who types a transcript in real time. Alternatively, deposition by written question is allowed pursuant to Rule 58. There are two critical differences between deposition by written question and written interrogatories. Interrogatories may only be issued to parties to the litigation, while a non-party may be deposed by written question. Depositions by written question also enable the other parties to the litigation to conduct cross examination of the witness by issuance of their own written questions.
Subpoena is more straightforward. Pursuant to Rule 52, a subpoena can be issued to a non-party to command that person or business entity to produce documents or other evidence or to testify at a hearing. Subpoena is most often used to obtain documents possessed or controlled by a third party such as a financial institution or a party’s employer. Unrepresented litigants can use this form subpoena for reference.
It truly cannot be overstated how frequently discovery disputes occur. Some manner of dispute occurs in almost every family law case. Frequently, it is because litigants provide incomplete or dishonest answers to discovery, or because a litigant exceeded the permissible scope of discovery. Other times, often through attorneys, a litigant simply may refuse to answer and/or hide behind some inapplicable objection. A lot of this is litigation gamesmanship, pointless spectacle that only increases everyone’s expense. Discovery disputes are controlled by Rule 65, which enables the family court to sanction litigants for discovery misconduct. Critically, this rule requires the litigants or their attorneys to personally consult in good faith prior to filing any discovery motion. This means that a party cannot instantly motion to compel discovery or request sanctions whenever there is a discovery dispute. Additionally, an increasing number of family court judges require litigants to request a status conference to resolve discovery disputes rather than filing discovery motions. When sanctions are appropriate, they can be severe. A litigant can be ordered to pay the other party’s attorney’s fees related to the discovery dispute or, more rarely, the responsible party even may be precluded from presenting, supporting, defending against, or introducing evidence related to a specific claim. This sanction can result in what is essentially default judgment.
Discovery is a serious process and mistakes can negatively impact the outcome of the case. For any questions about this or for a free consultation, please contact our family law attorneys.