Discovery (Fact-finding)

Discovery might best be defined as the acquisition of knowledge of facts in a legal dispute.  In the family law arena, there are two pretrial discovery methods: one using the Code of Civil Procedure’s Civil Discovery Act (Code of Civil Procedure section 2016, et seq.); and, the other under the Family Code’s disclosure and fiduciary obligations if the proceeding is for divorce, nullity, or legal-separation.
Discovery Under the Code of Civil Procedure
Unless limited by a court order, any party may obtain discovery regarding any matter, unless it is privileged, that is relevant to the subject matter involved in the case or to the determination of any issue in the case, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  (Code of Civil Procedure section 2017.010.)
Once the summons has been served in the proceeding, the plaintiff (or petitioner in family court) must normally wait 20 days before formally requesting discovery.  In contrast, the defendant or respondent (the responding party in family court) has no waiting period prior to formally requesting discovery once he or she has been served with the summons or has made a general appearance in the case.  Discovery must end on or before the thirtieth (30th) day prior the date initially set for the trial of the matter.
There are six commonly used devices (tools) for obtaining discovery in a family law case, and which one or combination of devices is used depends on both the complexity of the case and the client’s finances:
  • Form Interrogatories – Family Law (and other general civil forms interrogatory)
  • Special Interrogatories
  • Demand for Production of Documents and Things for Inspection and Copying
  • Requests for Admission
  • Oral Deposition before a certified shorthand (court) reporter  (generally, the most expensive device because of the reporter’s fees)
  • Deposition Subpoena for Production of Business Records
When a litigant does not have an attorney of record (i.e., an attorney whom the Superior Court recognizes as his or her court representative), a deposition subpoena to obtain business records kept by a third party such as a bank or employer must be issued by the Clerk of the Superior Court (through the family law business office or through the Family Support Division business office if the Family Support Division has jurisdiction over child support), under Code of Civil Procedure sections 1985(c), 1986(a), and 2020.210.  However, an attorney of record may issue a deposition subpoena.
Discovery Under the Family Code
Generally, a spouse (or putative spouse) has an extraordinary continuing “fiduciary duty” to maintain a standard of care and to fully disclose material information regarding the assets and debts of the community estate.  In divorce, nullity or legal-separation proceedings or in a separate proceeding, breach of this duty can lead to an award of damages against the breaching spouse.  The fiduciary duty to fully disclose material information gives family court litigants a powerful discovery tool.  For more on the fiduciary duty and remedies for breach of the fiduciary duty, please see Fiduciary Duties Between Spouses.