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What is "Discovery" and Why is it Necessary?

Discovery is the phase of litigation in which both sides request information from one another. The purpose is to learn about each position taken by each side to facilitate a settlement or, if a settlement is not possible, to get as much information as possible to be used at trial.

There are two main types of discovery in Family Law cases: Interrogatories (see MD Rule 2-421) and Requests for Production of Documents (see MD Rule 2-422). The Maryland Rules state that you have thirty (30) days to answer.

Not everything is “discoverable." The other side can require a lot of information from you however, you do not have to answer questions that seek irrelevant or objectionable information and you and what exactly that information is should be discussed with an attorney. Privileged matters are not a proper subject for discovery. Also, privileged attorney-client communications or attorney work product is not a proper subject for discovery. You are wise to discuss what information is not discoverable with an attorney so that you do not risk sanctions for failure to comply. Your lawyer should understand that the amount of information that will be requested of you is intimidating. When we get discovery requests, our attorneys will work with you to determine what must be answered and what can be reasonably excluded.

Your lawyer should diligently go through the discovery requests from the other side because a lot of what is asked for is objectionable material or written in such vague terms that it is difficult to know what is being requested. Likewise, at times documents requested ask for information that is irrelevant to the case and you do not have to provide them. You can/should ask your attorney to work with you and the other side to determine what information is really needed and how far back in time the information must go.

There are other types of discovery that are used less frequently. For example, Depositions can also take place during discovery but is a less used tool in Family cases. A deposition is question/answer styled inquiry in a room with attorneys for each party and a court reporter taking down every word that is said. Your attorney's office can prepare you or the deposed witness on how to listen to the questions and answer only the question that is asked. Depositions are adversarial and it’s not a time to let your guard down.

The opposing party may ask you to admit or deny certain key facts in the case. This is called a Request for Admissions of Facts (see MD Rule 2-424). Likewise, a party may ask the other side to admit the authenticity of a document that is to be presented as evidence during the trial. This procedure facilitates the fair and efficient administration of justice by minimizing the time and expense incurred in proving issues that are not in dispute.

Examinations -- A mental or physical examination of a party may be required if the mental or physical health of a party is an issue in litigation, for example if an alleged alcoholic parent is trying to gain custody, a court in the exercise of its discretion may order testing, evaluation, or an examination. An examination of the marital home or property may be appropriate if one side is concerned about the condition of property or the existence/loss of property.

If an opposing litigant won't answer or produce information, the court may order them to do so. If the party doesn’t answer, they may be found in contempt and the Court may bar them from participating in the trial or may order them to pay the attorney’s fees of the other.

Each Court handles discovery disputes differently and it is important that your lawyer understand the expectations of the Court and what the Court will and will not do to enforce your requests.

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