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Discovery: A Necessary Evil

On Behalf of | May 11, 2015 | Family Law

Trust runs at a pretty high premium in our day-to-day lives, and once that trust is broken it can be very hard to rebuild. This is especially true in family law cases, and many times clients come to us seeking to restructure their families based on a lack of trust. However, the law asks parties not only to have some degree of trust in one another, but trusts that the parties will tell the truth and not attempt to defraud the Courts. The most common example of this lies in the discovery process. Discovery is generally the longest, most time-intensive, particularly expensive, and stressful part of any case. The discovery phase begins after service has been perfected and can last for six months, meaning this phase generally will run up until the trial date. So what is it?

Discovery is a chance to get all the information possible on a case so that the parties walk into trial with the same footing regarding access to the information presented. It is your chance to ask questions, seek documents, and to know what evidence the other side plans to present in Court. Many of us think of lawyers and trials like they were portrayed in old television shows where a smoking gun is found at an opportune time in the trial and busts the case wide open for the Judge and jury to see. This image, however, is not reality. Rarely, as in never, does a bystander in the gallery jump up and confess to the whole thing.

Once you receive a discovery request, you must comply and turn over the information if you expect to be able to use it in Court. If you find the smoking gun, you have to share that information with the other side or you can be precluded from showing it in Court. Further, the Georgia rules on discovery require you to turn over not just your evidence at trial, but all items which could potentially lead to admissible evidence against you.

This is one of the most difficult pills to swallow in a family law case. The idea of turning over copies of bank records, retirement information, and otherwise confidential and personal information is very unsettling when you do not trust the person on the other side. It is also difficult to believe that the opposing party is following the rules and turning over all the information they are required to disclose. And that is where the Court steps in to help bolster this trust. If one party refuses to turn over certain information, is found to have intentionally excluded information or produce intentionally misleading information, that party can be sanctioned by the Court. The sanctions range from being assessed fees, to being barred from presenting their evidence at trial, and even to jail time in the most extreme cases. Further, if you can uncover, through additional discovery of third parties. that your opposing has lied in their responses, you can begin chipping away at the Court’s trust of the other party, which will certainly help your case.

While you may not be required to answer every question or turn over every document requested, (there are exceptions and defenses) you should speak with an attorney before making the decisions on what to turn over or not. When in doubt, remember, it is more beneficial to turn over more information than less. Just because you turn over information in discovery does not automatically mean it will be used against you, and frequently the more documents or information you can give, the more you are building your own case, bolstering your own story, and demonstrating your honesty.

For example, one of the most common areas people fight over is the income of the other party. And one of the ways this is remedied is by looking at W2s, check stubs, and banking records of each party. While it may be frustrating to turn over all three sets of information and feel like you’re going to be questioned at each turn, it will actually help your case in the long run because you now have three pieces of evidence to show you are being truthful about your income. If you refuse to turn over bank statements (for example) then your opposing party can argue that you are hiding something in your statements, such as extra income. Even if it is not true, it will create the question in the Judge’s mind about your honesty and begin to make the Judge question if they can trust you – so why risk it?

Plus, just because you do not turn over the documents, does not mean the other side cannot access them. These documents generally can be sought directly from the source, and if you refused to turn over the documents, you many be responsible for the extra cost incurred in seeking that information. Even banking records for accounts you share with third parties can be subpoenaed and presented to the other side as the law in Georgia provides that you do not have an absolute right to privacy with your banking records since the records technically belong to the bank – not you. In the end, it is a fight not worth the risk.

While discovery is a tedious and flustering process, it truly is the backbone of your case. The more time an energy devoted to your discovery responses, the better off your entire case will be. The process is a pain in the butt, but it’s an area where hard work will pay off in the long run through dividends of trust. And that is why discovery is a most necessary of evils.

Savannah Steele