When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.
Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client’s must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage “what is good for the goose is good for the gander”, often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.
I recently tried a case where I filed a Motion in Limine prior to trial with the intended purpose of preventing the opposing party from introducing any evidence or testimony in the child custody case which would have been obtained through the discovery. As of the date of the filing of the Motion, the opposing party had not provided responsive Answers to Interrogatories or Responses to Request for Production of Documents, after an Order was entered Compelling the Discovery by a date certain. Needless to say the Discovery was not provided per the Order to Compel which necessitated the filing of the Motion in Limine. While a factually strong case was made to grant the Motion in Limine, the Motion was denied. It is important to understand that in any case involving children, the Court is generally going to go out of its way to permit the case to move forward and often allow the information which should have been provided through the Discovery process. In child custody cases the overriding factor is “the best interests of the children.” In this particular case, I was given the option to have the case postponed to allow the other side time to comply with the Discovery violations or to move forward. My client chose to move forward verses having the case postponed and he was ultimately awarded custody of the child. In my opinion had the case involved more than custody, ie divorce, property, monetary issues, the Judge would have granted the Motion and either precluded the introduction of the evidence or postponed the case.
For more information on the Maryland divorce process please contact an experienced Maryland divorce attorney.