Discovery is the legal process of fact finding. It is where lawyers try to get information from various sources about the facts of the case. It usually occurs somewhere between filing the divorce complaint and trial. Although there are several forms and methods of discovery, I will attempt to demystify the major ones here.
Depositions- This is probably the form of discovery that is most familiar to people. A deposition is where a lawyer asks a party or other person, questions under oath. Traditionally these are recorded by a court reporter taking stenographic notes. Sometimes the deposition may be recorded by video. Depositions are often taken at on of the attorney’s offices without the presence of a judge. The person giving testimony is called the deponent. The deponent is sworn in and then questioned by the attorney for the discovering party. Sometimes the deponent is then cross-examined by the opposing council. Depositions are normally taken live and in person, but they may be taken upon written questions or over the telephone.
Interrogatories- These are often the first form of discovery that you will see in a typical case. Interrogatories are written questions prepared by one parties attorney and sent to the other party to answer. Answers are given in writing and under oath. Typical questions in a divorce action include:
- What property is owned
- Whether a party has disposed of any property
- Debts of the party
- Stocks, bonds, bank accounts, etc.
- Sources of income
- Financial records
Motion/Order to Compel Production of Documents- This asks a party to produce certain documents such as tax returns or deeds to property. Parties may also be asked to bring documents to a deposition or attach documents to interrogatories.