What is Discovery?
In all civil cases, Georgia law allows “discovery” to obtain information and documents, records, or other items from an opposing party. This includes Family Law cases such as divorce, legitimation, paternity, and custody cases. Several methods may be used:
Interrogatories, which are written questions that must be answered by the opposing party under oath, in writing;
Document Requests, which are written requests that a party produce listed documents, records, or other items so that these things may be reviewed, inspected, and copied;
Depositions, which are used to obtain oral testimony from a party in the case or witnesses;
Other Methods, which include Requests for Admissions, Requests for Physical or Mental Evaluation, and Written Deposition Questions.
Does Discovery Apply in My Case?
These procedures apply to any civil case. This includes Family Law cases such as Divorce cases, Child Support cases, Custody, Legitimation, Paternity cases as well as cases to modify prior custody, child support, or alimony.
What is the Point of Discovery?
In general, lawyers use “discovery” methods to:
- Obtain information;
- Get documents and records, or other items;
- Find out what an opposing party has to say about the case or certain issues in the case;
- Learn about potential witnesses or evidence;
- Pin down the position(s) of the opposing party.
What Authorizes Discovery?
These procedures are authorized by several Georgia statutes and rules:
Code Section 9-11-26, which governs discovery generally.
Code Section 9-11-27, Code Section 9-11-28, Code Section 9-11-29.1, Code Section 9-11-30, and Code Section 9-11-32, which authorize and govern procedures for depositions.
Code Section 9-11-33, which authorizes and governs procedures for interrogatories.
Code Section 9-11-34, which authorizes and governs document requests.
Uniform Superior Court Rule 5.5, which states how an objection to privileged information or any objection that material sought is attorney trial preparation material must be made.
What Information and Items or Documents Can be Obtained?
Financial information and records, such as tax returns, pay stubs, bank account records, real estate records, vehicle records, and loan and debt information records are extremely important in almost every divorce or child support case and will normally be requested by each side. There is no basis to object to these requests if there are any financial issues.
Health Information or Records may be requested from a party to the case or from any provider if relevant to an issue in the case. HIPPA does not protect against this information being provided or records being provided. There may or may not be a basis to object to providing such information. An attorney will need to be consulted.
Personal Information is usually relevant to any Family Law case and may be requested. There is rarely any real basis to object.
Information or Documents that a Party contends support their Case is routinely requested. There is no real legal basis to object.
Information about Potential Witnesses is almost always requested. There may or may not be a basis to object, depending on whether the interrogatory is asking for what you think or what your attorney will determine. An objection or refusal to answer an interrogatory directed to what you think will only increase your legal expense. But your attorney should object to any such interrogatory that asks them to identify hearing or trial witnesses. If your attorney is including objections to such discovery requests you should carefully consider whether you should refuse to answer the question. Unless the answer is only the work product of your attorney, any objection will only increase expense to you.
Other Information or Documents or Items. These discovery requests must be analyzed based on the issues in the case.
How is Discovery Conducted?
Interrogatories, Document Requests, Requests for Inspection, and Requests for Admissions are referred to as “Written Discovery,” and will all be submitted to a party, either included with a complaint personally served or acknowledged by the defending party or sent to an attorney representing a party after the case is filed. Written responses are required and, with respect to Interrogatories, written answers to each question must be signed by the party, under oath.
Different forms of Interrogatories and Document Requests are used by lawyers. Most lawyers have a “standard” set of forms they send in any case, regardless of the actual issues. Forms used by lawyers may be titled as “First Interrogatories to Plaintiff,” “Interrogatories to Plaintiff,” “First Interrogatories to Defendant,” “Document Requests to Plaintiff,” “Document Requests to Defendant,” “Notice to Produce and Request for Production of Documents,” etc. In some cases, different types of discovery requests will be combined on one written request or document, such as “Interrogatories and Document Requests to Plaintiff,” or “Interrogatories and Requests that Defendant Produce Documents.” Some forms are clear and useful, others are poorly constructed or written which will require a lawyer to explain.
While there is a right to object to any particular item sought through written discovery requests, objections must be legal objections. One cannot simply object because they don’t like the request, don’t want to comply, or think it is irrelevant. In fact, the law uses a very broad definition of what is “relevant” for discovery purposes, so it is quite common for discovery requests in divorce, support, or custody cases to seek information and documents that might seem confidential, overly personal, or even embarrassing. In reality, there are very few valid legal objections to discovery in Family Law cases, unless the discovery has been sent based on a form that isn’t appropriate to the particular case or a particular discovery interrogatory or document request is so poorly written that it can’t be answered or it applies to truly irrelevant information. “Form” objections, meaning objections to every single interrogatory or document request, also referred to as “general” objections, will only cause delay and unnecessary expense.
There are deadlines that must be met in responding to any written discovery. Failure to meet these deadlines can result in sanctions, such as court orders against a party who fails or refuses to properly answer or respond to discovery, awards of expenses including attorney’s fees against a party who fails or refused to properly answer or respond to discovery, or even dismissal of claims in a case. It is very important that these deadlines be known and met.
Any party or any witness may be deposed by either side in a case by sending a written notice to all other parties in the case and, if deposing a witness who is not a party, by serving a subpoena on the witness. Service can be accomplished by overnight delivery, personal delivery, sheriff’s service or other methods. A party or witness who is “deposed” will be required to attend and to answer questions under oath. The deposition will be conducted before a court reporter who will complete a written, word-for-word transcript, put in a sealed envelope, and file it with the Clerk’s office in the case. Upon request and for a fee, the court reporter can provide a copy of this word-for-word written transcript of the deposition to any party.
Depositions usually occur in an attorney’s office, although sometimes depositions are conducted in a courtroom or a room near a courtroom. Though conducted less formally than court hearings or trials, what a party or witness says in response to a deposition question can and will be used against them in court, either as “impeachment” of the party or witness or to get them to say what they said in a deposition.
There are many rules that apply to depositions, which include evidence rules, procedural rules, and ethical considerations of participating attorneys. As is the case in a court hearing or trial, there may a right to object to any particular question, but attorneys normally agree that most objections can be raised later, after the deposition. Any objections made should be legally valid and should not be used to “coach” a party or a witness.
Depositions are more expensive than other forms of discovery, mainly because a court reporter is paid to attend, paid to produce a transcript, and paid more to provide a copy of a transcript, but also because many depositions will involve more time than is necessary for written discovery. For this and other reasons, attorneys often wait to conduct depositions until necessary to prepare for a trial.
What are the My Responsibilities?
If you are a party in a divorce, legitimation, paternity, child support, property, or child custody case, it is your responsibility to respond to any discovery sent to you, whether as “Plaintiff” or “Defendant” or “Intervenor” and to respond truthfully and completely.
Answers to “interrogatories” must be your answers, not your attorney’s. Unless there is a valid objection to be decided, you must provide all information requested. Failing to do so will only cause you problems. Unless there is a valid objection that is sustained by the court, you don’t get to decide what is provided, you must respond fully and completely.
You must provide any documents or records or other items requested that are available. Unless there is a valid objection to be made, you can’t decide to withhold documents or items because you think “unnecessary.” It’s your responsibility to provide everything that is requested that is available to you. This includes documents, records, or items that you can access online. It is not restricted to “hard” documents.
Parties to a case have a right to hire an attorney and if you have an attorney, he or she can and should assist by providing advice and counsel, but ultimately you are the responsible party.
Discovery items may be written in extreme “legalese,” or include words or phrases that make little sense. Terms or phrases may be used that are confusing and which have legal significance but which seem to have different meanings to non-lawyers. Examples include “real property,” which means “real estate,” not “really real” property, and “personal property” which means “anything that is not real estate,” not “what I consider personal to me.” A lawyer may need to explain and it is your responsibility to hire a lawyer to help.
In general there is a right to object to discovery, but objections must be legally valid and should be made to specific items. Anyone, including an attorney, who objects to any discovery item must be prepared to demonstrate in court why the objection has merit, to include providing legal authority for the objection. A party who objects always bears this burden. The party who sends discovery is not required to justify the discovery.
Objecting to all interrogatories or document requests as a “form” response is not specifically authorized by any Georgia law and will not do anything except result in additional expense to both parties. This may include emails or letters from the opposing attorney, conferences, or even a court hearing to find out if the party or the attorney for a party has excluded information or documents based on general objections. Not only will this delay the case, but it will add substantial expense to both parties, and such additional expense may be assessed against the party whose attorney attempts such a tactic.