The process of discovery is a vital step in litigation. The American Bar Association describes discovery as “a formal process of exchanging information between the parties” regarding the evidence and witnesses each plans to present at trial. According to the ABA:

“Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent “trial by ambush,” where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence.”

Discovery is also a way to obtain information that only one spouse has about assets, income or debts. 

Litigation is the most common process option chosen by divorcing couples, so most divorce cases will experience the discovery process, even if the case is ultimately settled without a trial.  Even mediated cases engage in a discovery process. 

For litigated or contested cases, discovery begins after one spouse has filed for divorce.  In St. Louis County and St. Charles County, there is a preliminary step to the formal discovery process called the Mandatory Document Exchange.  As part of a contested divorce, you are required to exchange certain documents related to your assets, debts, income and expenses for the children.  The requirement ensures that both parties have equal access to information and are able to gain a full picture of the assets and debts of marital estate, along with support for the children.

Even if the county in which you file for divorce requires a mandatory exchange of documents, parties are still permitted to engage in formal discovery and may request certain information and/or provide documents to one another.

Steps in Discovery

Some cases may involve only one or two of these steps, whereas others may require all of them. Interrogatories and depositions are the most common.

• An Interrogatory is a list of questions that is formally served on the other party, who then has 30 days to respond with their answers under oath. Questions must be answered fully, or the respondent may object and explain why. Interrogatories are not filed with the court by the answers are provided to the other party.
• A Request for the Production of documents is a list of requested documents served on the other party, who then has 30 days to respond by producing the requested documents.  The documents are not filed with the Court but are produced to the other party.
• Depositions are typically held in person or by video conference. Each deponent testifies under oath to questions asked by the attorneys.  The witness may be cross-examined by the other attorney. Lengthy or complex cases may involve more than one deposition, especially if unexpected or contradictory information is uncovered in previous steps.
• A Subpoena is a Court order to produce specified records or documents. This method is often used if one person believes the other party has not submitted all relevant documents during the previous steps. Subpoenas can be served on third parties like banks, medical professionals, schools or other people holding relevant documents.  In complex custody divorces or high net worth divorces, it is not uncommon for multiple subpoenas to be served. 

The timing, requirements, and rules for responding for each discovery step will depend upon the county where your case is located. The parts of the process are not exclusive, and additional steps may be needed depending on the issues in your case.

With a combined 30 years in family law, the attorneys at Jones Family Law Group, LLC, will provide the legal guidance you need. For questions or to schedule a confidential consultation, contact our team.