Discovery is not a Game. Why The Discovery Process is Vital to The Resolution of Your Divorce

At the beginning stages of every litigation case there is always process that occurs called “discovery.” Unlike the TV channel that brings us the anticipated Shark Week every year, “discovery” in the legal sense refers to the stage in litigation where the parties seek information from one another. Under California Civil Code section 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” So, most things can become discoverable through this process.

Discovery is important because allows the parties to know what evidence the other side has. It was designed to prevent “trial by ambush,” where one side doesn’t learn of the other side’s evidence or witnesses until it is too late; leaving the other side scrambling trying to figure out an on-the-spot response. This is something that most TV shows and movies get wrong. For the most part, attorneys cannot suddenly bring in a surprise witness that is going to break the case in the final hour. There is a lot of planning that goes in to preparing for litigation, namely the discovery process. Therefore, it’s not that shocking or glamorous.

Regardless, the voluntary exchange of documents and information within discovery helps expediate cases by pushing the parties closer to a resolution. Even more important, when you are responding to a discovery request, you have an obligation to act in good faith and produce documents that adhere to the propounding party’s questions. Anything outside of that constitutes a misuse of the discovery process.

For instance, last week Remington Outdoor Company, a gun manufacturer being sued by nine families whose loved ones died in the 2012 Sandy Hook Elementary shooting, was accused of doing just that.

In their discovery process, attorneys for the gun manufacture handed over more than 40,000 documents; 34,000 of which comprised seemingly nonsensical images, GIFs, and videos of “random images,” including Minion memes, emojis, and ice bucket challenge videos. According to court filings from the plaintiffs last week, Remington Outdoor Company “treated discovery as a game” in order to “delay and obfuscate” the trial. The irrelevant documents were seen as a calculated tactic as the majority of the documents produced had absolutely nothing to do with the case at hand.

Misusing The Discovery Process

California Code of Civil Procedure Section 2023.010 outlines the misuses of the discovery process, which includes, but is not limited to the following: using a discovery method in a manner that does not comply with its specified procedures, and employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Actions like the ones mentioned above definitely fall under this category.


So, if a party is found to have violated the discovery act and misuse the discovery process, what would most likely happen? For instances such as these, the violating party will probably be subject to multiple sanctions. Specifically, the discovery code outlines the courts authority to impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, pay the reasonable expenses incurred by anyone as a result of that conduct. California Code of Civil Procedure Section 2023.030. Furthermore, Family Code section 271 gives the court authority to issue sanctions against a party who acts in a way that increases the cost of litigation. Misusing the discovery process would be viewed as increasing the cost of litigation because it stalls the case’s process and forces the responding party to file a litany of unnecessary motions to correct the errors which racks up unwarranted attorney’s fees and costs.

Discovery in Divroce

Your divorce action is no different. As a party to a marital dissolution process, you will be required to send documents to your spouse during the discovery process, especially when completing your Preliminary Declaration of Disclosures. Your spouse at any time can request formal and informal means of discovery like Requests for Production, Requests for Admission, Form Interrogatories, and Depositions. You have an obligation to act in good faith and produce evidence that is relevant to the case. As we seen before, any misuse of the discovery process can result in serious fines and sanctions. The best way to avoid these punishments is just to operate in good faith from the beginning. Do your best to be honest and diligent in order to make your case go as smooth as can be.

If you have questions or concerns regarding the discovery process in your litigation matter, please call our office to schedule a consultation. Here at Mello & Pickering, LLP we have extensive experience settling and litigating family law matters and can guide you as needed to ensure a successful resolution.

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