Discovery is the part of your case where both sides exchange information. In a divorce or custody case, that usually means financial records, communications, photos and audio recordings, documents related to your children and answers to questions sworn by your signature. It is a time-consuming and daunting task, but how you handle the discovery process can shape the outcome of your case as much as anything that takes place in the courtroom.

Different Methods of Discovery

• Interrogatories: written questions that you answer in the narrative form under oath
• Requests for Disclosures: a list of documents and names for any potential witness or expert witness in your case
• Requests for Production: a list of documents you will be required to hand over to the other side (bank statements, tax returns, pay stubs, texts)
• Requests for Admission: statements that you must “admit” or “deny” without further explanation
• Depositions: in-person questioning under oath, much like testifying in court 

Each form of discovery has a deadline, often 30 days, except for depositions. Problems start when discovery deadlines are missed.

Common Mistakes

Ignoring it. Some clients hope the requests will go away. They won’t.

Handing over “most” of the documents. Omitting certain documents looks like hiding something, even when you aren’t.

Hiding or “forgetting” assets. Undisclosed accounts, side income, or cryptocurrency are almost always revealed by the other side, and the damage is far worse when that happens.

Deleting texts or social media posts. Once a case is anticipated, and especially after a lawsuit has been initiated, deleting electronic communications can be (and usually is) treated as destroying evidence.

Answering emotionally. Discovery responses are sworn statements, not a place to vent.

What Happens If You Don’t Comply?

Judges take discovery very seriously because the system only works when people are transparent with information. The days of hiding evidence and walking into the courtroom with the “smoking gun” are long gone. Consequences can include:

• Court orders compelling you to respond, often with a short deadline
• Paying the other side’s attorney’s fees for the motion they had to file to force you to respond
• Monetary sanctions against you
• Exclusion of evidence: if you withheld it in discovery, you likely won’t be allowed to use it at trial
• Adverse inferences: the judge may (and usually does) assume the missing information would have hurt you
• Contempt of court, which can mean fines or, in serious cases, jail
• Damaged credibility: in custody cases especially, judges want to see a parent who follows rules and tells the truth. Discovery behavior tells them a lot.
• Penalties: in extreme cases, a court can even rule against you on certain issues.

How to Protect Yourself

1. Read everything the day it arrives and send it to your attorney immediately.
2. Calendar the deadline. Your attorney will too, but you’ll need time to gather documents.
3. Start collecting records early: statements, tax returns, pay stubs, and account information.
4. Preserve everything. Don’t delete, edit, or “clean up” texts, emails, or posts.
5. Be complete and honest. If you don’t know or can’t find something, tell your attorney. There are proper ways of handling information that cannot be located.
6. Ask before objecting. Some requests are overreaching, and objections can be made. That’s a legal decision, not a reason to skip the request.

The Bottom Line

Discovery is a tedious process, but one that is much easier when you respect it. The rules for discovery are in effect for a reason – both sides are permitted to request certain documents and ask certain questions to investigate the claims on both sides. Courts are less than thrilled when a litigant has to ask a judge to make the other party comply with the rules of discovery. Clients who respond promptly and honestly build trust with the court, and that trust matters when a judge is deciding property or your children’s future.

If you’re overwhelmed by a discovery request, call your attorney before the deadline, not after. Most problems are fixable early. Late, they get expensive and can have a detrimental impact on the outcome of your case.