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Gone Fishing? Discovery Procedures in Matrimonial Actions

Divorce actions go through stages, all of which are meant to compel an ultimate resolution whether it be by written stipulation or trial. Of these stages, none is more critical, time consuming and laborious than the discovery phase.

Discovery during divorce actions is the pursuit of financial information in order to ascertain what constitutes the marital estate, separate property, business interests and income for the purpose of calculating support. Common discovery devices, include, but are not limited to: Notices for Discovery and Inspection (demand for an enumerated list of financial documents), subpoenas, interrogatories, demands for electronic data, HIPAA demands, and depositions. In addition it is not uncommon for experts to be appointed by the court or agreed upon by the parties to value business interests, real property, collections or certain types of retirement accounts.

Once document demands are made and exchanged, the parties and his/her respective attorneys undertake the process of reviewing the financial documents, determining what if anything is missing and/or seems suspect. Thereafter, if necessary, depositions are conducted.

Depositions are generally the discovery procedure that causes a litigant the most anxiety, and is the most similar to being asked to testify under oath and in the presence of a stenographer, and wherein exhibits are marked. The biggest difference is that a party’s attorney is not permitted to object to a question except under very limited circumstances. The main purposes for a deposition include, but are not limited to: locking the deposed party into an answer previously provided regarding finances, filling in blanks left unanswered in the documents already produced, pursuing and requesting answers and documents which were not previously produced. An attorney will prepare his/her client for the deposition, as well as asking for his/her assistance and input regarding the deposition of the other party. A deposition can last for an hour or can go on for days depending on the issues involved.

During a matrimonial action, both parties are REQUIRED to comply with discovery demands unless the request for information is irrelevant, harassing, remote, vague and ambiguous, overbroad, unduly burdensome, oppressive or falls within a form of protected information. Sanctions can be imposed for engaging in frivolous discovery. Similarly, there are consequences (ie - preclusion) for failing to comply with valid discovery requests, and a court will generally draw a negative inference against a party who refuses to produce the demanded documents.

As previously stated, the discovery stage is utilized to obtain FINANCIAL information. While depositions can get heated due to an attorney or litigants’ attitude during the process, the true purpose of a deposition is to gather the necessary financial information to pursue or defend a claim.

Discovery should proceed in a timely manner, and a party should cooperate with his/her attorney regarding the production of documents, lest the action be prolonged and the court question the credibility of the party failing to produce.

Most important, the discovery phase is not a fishing expedition. Only valid financial inquiries will lead to an expeditious resolution of the action.

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