Why is Discovery So Expensive in Divorce & Child Custody Trials?

Discovery is a pre-trial procedure by which each party to a divorce or child custody case can obtain evidence from the other party through certain devices, such as a Request for Production of Documents, Interrogatories, Admissions, etc.

Discovery can also involve subpoenaing documents from certain entities or deposing relevant witnesses. In family law, the need to conduct discovery is commonplace, but far too many attorneys start the process without enlightening their clients about what to expect from a time and cost perspective.

First, drafting the requests for the information your client seeks takes billable time. Depending on the complexity of the information sought, an attorney could spend hours drafting the correct phrasing of questions. After that, they must wait, as the other party typically has thirty days to respond to the discovery requests. Often times, the other side asks for an extension for more time to respond because it takes more than thirty days to gather all the documents requested.

The real expense is incurred once the responses are in-hand — because more often than not, the other side didn’t produce everything requested. The attorney’s office that sent out the discovery request must immediately go through all the responses and catalog what was produced. This is because the attorney knows they have forty-five days from when responses were produced to seek recourse through the courts if they need to compel certain responses.

“It may come as no surprise that people play games with discovery.”

It may come as no surprise that people play games with discovery. They “hide the ball,” making excuses for not producing certain documents. A party’s recourse is to file a “Motion to Compel” with the court, explaining to the court what was supposed to be produced and why/how they know the other side is in possession of it such that the court should feel comfortable compelling production.

Preparing such a motion is a lengthy process. To file a proper Motion to Compel, the California Code of Civil Procedure requires very detailed explanations as to why each document requested is necessary to the litigation and how the certain request wasn’t complied with. Further, it requires proof that the attorney took appropriate steps to “meet and confer” with the other side about what documents were missing.

That’s right — if you don’t think the other side has produced everything, you first must make reasonable efforts (in detailed writing, generally) to bring the issue to their attention and give them a reasonable period of time to correct the error. Only then can you file the Motion to Compel. However, this must all be done within forty-five days of when responses were returned.

The process — drafting the discovery, cataloging responses, drafting a Meet and Confer, drafting a Motion to Compel, and attending the hearing and possible continued hearings to review compliance — can span tens of billable hours depending on the nature of the issues. Attorneys should detail this process to their client before deciding to conduct discovery, and be very clear as to whether it’s worth all the work and fees to acquire the specific documentation.

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FORESTER PURCELL STOWELL PC  is a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. The firm’s founders are recognized by the State Bar of California’s Board of Legal Specialization as Certified Family Law Specialists and regularly represent business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. The legal team can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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