The Significance of Discovery Process in North Carolina Divorce

The Discovery process

The Significance of Discovery Process in North Carolina Divorce

The Discovery process refers to the formal exchange of information between parties to a lawsuit.  The discovery process is important because it aims to put both parties at an even level in terms of information and knowledge on various aspects so that the right decisions can be made. The discovery process works because each party is legally bound to furnish information requested by the other party during the discovery process.

Discovery is particularly helpful in divorce cases.  In many divorce cases, one spouse knows more about the finances than the other.  In fact, in many divorce cases, the discovery process is the only way that the other spouse can uncover a true picture of the parties’ financial state.  Divorce litigation can be difficult.  It is twice as hard when you are fighting a case without all the necessary information.  Discovery provides that even playing field that is especially important to divorce cases.

While a lawsuit begins with the filing of a complaint, the building blocks for the lawsuit usually don’t arrive until the start of the discovery process.  Discovery is a critical phase of the litigation process.  During discovery, each party gathers the facts to be used in the lawsuit.  Discovery can help parties settle their lawsuits or narrow their issues for trial.

In North Carolina, Rule 26 of the North Carolina Rules of Civil Procedure is the starting point for the discovery process.  Rule 26(a) provides the different methods for performing discovery in North Carolina.  That section reads as follows:

Rule 26. General provisions governing discovery.

  • Discovery methods. – Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

The discovery process can employ a wide variety of techniques including oral and written depositions, requests for documents, and interrogatories.  These techniques are aimed at getting case information prior to trial to determine what legal issues need to be litigated, or whether or not the case can be settled.  Depositions are a key part of the discovery process.  A deposition involves calling a person to an agreed upon location, usually a lawyer’s office, and having that person questioned while under oath.  There are several purposes of a deposition.  For starters, by deposing a witness, you can hear firsthand exactly what the witness’s account will be.  Hearing the testimony in a deposition is preferable because the lawyer is not surprised by it at trial later.  If a witness says something that is troublesome during the deposition, the lawyer knows that he needs to find any other existing evidence that may contradict the witness, or explain away the deposed witness’s testimony.  Taking a witness’s deposition in advance of the trial will help the lawyer prepare for questioning that witness in court.

In the context of divorce, there are several instances where your attorney may want to depose a party.  Your attorney may depose your spouse or another witness to lock down their testimony prior to trial.  If the person who was deposed later deviates from his deposition testimony, your attorney can bring out this inconsistency.

There are other uses for depositions.  In some cases, the deposition of a witness may make a lawyer decide not to call that particular witness at trial.  If a lawyer calls a witness for deposition, and the witness says some damaging things about the lawyer’s client, or the lawyer’s case, the lawyer may elect not to call that witness at trial.  If the opposing attorney also declines to call the witness at trial, then the witness’s damaging testimony has no effect on the outcome of the case.  In short, if a case is going to trial, it is infinitely better to know exactly what the witness will testify about.

Depositions can reveal if a witness is not good for your case.  If a witness is not great for your case, you can decide not to call that witness at trial.  If the other side decides to call that witness at trial, at least you know about the problems with your case and can look for ways to minimize the impact of the witness’s testimony.  The lawyer may be able to use the information learned during the deposition to effectively cross examine the witness at trial.

Like depositions, interrogatories are a great fact finding tool used by attorneys prior to the trial of an action.  Interrogatories are written questions that are submitted by one party to another that seek relevant information about a case.  North Carolina attorneys often use interrogatories to learn more about the issues and to discover other potential areas that may be relevant and important to the case.  Either party may request the other for information through this process.  Unless the information is ‘privileged’, disclosure is mandatory. Willful non-disclosure or incorrect disclosure can cause the judge to issue sanctions.  Interrogatories are frequently used in divorce and other family law cases.  In a divorce, interrogatories may be used uncover hidden assets or gather information about income previously misstated by the opposing party.  This information could be critical in an alimony or equitable distribution hearing.  Responses to interrogatories are made under oath and can be used in subsequent proceedings such as trials and depositions.

Another useful tool in the discovery process is the request for production of documents, or RPDs.  RPDs are written requests made from one party to another that seek documents that are relevant to a particular cause of action.  The documents sought must be requested with sufficient detail to allow the party receiving the request to determine what documents must be disclosed.  RPDs are particularly useful items of discovery because they give a party access to documents that may tell a story far different from the one an opposing party has put forth.  RPDs often elaborate on an issue.  If an opposing party only tells part of the story, the RPD may be able to provide the rest.  RPDs tend to be favored by parties because they give the person requesting the documents a real opportunity to see firsthand what a particular document says.  For that reason, RPDs are frequently used in divorce, and other family law cases.  RPDs can give a party access to another’s bank account records, credit card statements, insurance policies, etc.  Information derived from RPDs is often particularly helpful.  This information tells a story that either confirms the narrative given by the opposing party, or casts serious doubts on the opposing party’s claims.  Either way, RPDs help lawyers narrow issues for trial, or decide whether or not a case should be settled.  Like interrogatories, responses to RPDs are made under oath and can be used in subsequent proceedings such as trials and depositions.

A final, commonly used, discovery tool is the Request for Admissions, or RFAs.  RFAs are similar to interrogatories in that they are delivered to the opposing party in a question format.  Unlike interrogatories which ask open-ended questions, RFAs ask questions of the other party in a manner that require the opposing party to respond with a simple yes or no answer.  The questions often begin with “admit that” and seek to have an opposing party admit or deny the truth of a statement.  Like interrogatories, and RPDs, responses to RFAs are made under oath and can be used in subsequent proceedings such as trials and depositions.

Need for Discovery Process

Divorce is never an overnight decision. As the incompatibilities and other issues continue to remain unresolved over a period of time, divorce is often considered as a last resort. This period leading up to the idea of divorce gives considerable time to the spouse contemplating divorce to take steps to hide assets, show business losses and other such activities. It is difficult to believe that a hitherto loving spouse can do this. But, unfortunately this is a fact many people have experienced firsthand.  Hence the discovery process is important to make sure that both spouses are on the same page.

Waiving Discovery

Given the differing types of discovery tools available to both parties in civil cases, discovery is a valuable part of civil litigation.  With that value, however, comes cost.  It should be no surprise that discovery can be quite expensive.  Coming up with the exact questions to ask the other party to illicit the exact, pertinent information may require time.  Moreover, it will likely take time for your attorney to sift through the responses and all of the documents he will undoubtedly receive from the other party.

In an effort to avoid the cost of discovery, parties may elect to waive the discovery process altogether. A party waives discovery when he or she decides not to take any depositions or to submit any interrogatories, requests for production, or requests for admissions to the other party.  Please note, just because one party decides not to participate in discovery process, this does not mean that the party is exempt from having to respond to discovery request or attend depositions.  More importantly, if a party waives discovery and subsequently chooses to settle his or her case, that party may be prohibited from reopening his case or setting aside a judgment in the matter based on later discovered information.

The Discovery process is a critical part to the litigation process.  Without discovery, it is possible that one spouse may get inadvertently cheated out of what is rightfully his or her share of the marital assets.  Besides the question of monetary assets, the discovery process can unearth information that can be used to settle other post-divorce issues like child support and custody too. Even if the issues are not resolved, the process ensures that both parties have the correct facts, when it comes to litigation, which can help speed up the litigation and thus help keep the costs down.

 

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