WHAT IS DISCOVERY?

“Discovery” is a phase of litigation in which information is sought and exchanged. Since the divorce process is one type of litigation, discovery occurs in Probate and Family Court cases as well as cases in other courts. The discovery process is governed by various procedural rules that are similar, but not exactly the same in every court. Types of discovery include, Interrogatories, Document Requests, Depositions, Request for Admissions, and Subpoenas.

Interrogatories are written questions that require written answers from the opposing party. Document Requests are a list of documents one party hopes to seek from another, but only include documents that already exist; there is no obligation to create a document to satisfy the other party’s curiosity. Depositions require the presence of a party, non-party, or business representative to answer questions asked by the opposing attorney that are recorded in a transcript scribed by a court reporter. Requests for Admissions are a list of facts that the opposing party must either admit or deny. Subpoenas are a legal process by which a party to the divorce (i.e., husband or wife) can get documents from third parties (e.g., banks, employers, etc.).

Each type of discovery has its benefits and disadvantages. Cost, time commitment, likelihood of achieving results, and the information targeted are some factors that govern the strategy decision of which discovery methods to use. Interrogatories, for example, can be a useful tool, but I find that a deposition, while more expensive, yields better informational results. A wily party can be evasive in his written Interrogatory questions, but is more likely to answer when under oath and facing an opposing attorney in a deposition because an inquiring attorney can doggedly pursue the answer. A well-written Document Request can yield helpful results, but an uncooperative party will refuse to give incriminating documents, intentionally or inadvertently. Acquiring documents from banks and employers directly yields more complete documents because the third party does not have the same motive to withhold information. Requests for Admissions can be a very useful tool if the fact you seek admitted is perfectly stated, and admitted. However, a person looking to avoid a damaging admission will try very hard not to answer.

Future blogs will provide more about discovery strategy during litigation as well as ways to organize and access the information collected.

Best regards,

Hindell Grossman
Grossman & Associates, Ltd.
617.969.0069
November, 2012

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