Like a lot of things in law, the word ‘discovery’ has a special meaning – one that is different from everyday use. Discovery refers to a process or set of processes to get information that can mean the difference between a great outcome, an okay outcome and a bad one. Understanding the proper use of discovery is the first step.

In this post, we’ll go over discovery in general: what it is and how it works.

In later posts, we’ll address:

• Discovery Tools
• Discovery Uses and Abuses
• Discovery help and the court’s role in discovery

What is Discovery if it's not the TV Channel?

According to the Oregon Judicial Department (“OJD”) “Divorce and Custody Trials in Oregon, discovery is “the right to request documents from the other party. This process is called ‘discovery.”

The OJD glossary described it as “A means to get documents, answers, and other information from a party or parties to a lawsuit. Examples of discovery are a request for production, interrogatories (written questions) and depositions (questions which are usually asked in person and on the record)”

These definitions aren’t really accurate or super helpful. It may be more useful to start with the 5 W’s of journalism (my father was a reporter so this is how my brain works) to understand discovery
this way:

• WHAT
• WHO
• WHEN
• WHERE
• WHY

The What

At a high level, discovery is a tool kit that for family law cases has 3 main types:

• document based discovery which includes requests one side makes to the other for
  specific documents, “mandatory” discovery which requires both parties sides to exchange information and “subpoenas” which requires third parties to give documents to one or both
  sides
• evaluations performed by experts which include custody/parenting and psychological evaluations, drug/alcohol testing, addiction assessments, etc.
• sworn Q&A - (written Q&A) between the parties done under oath – either depositions, deposition upon written question or requests for admissions

The Who

Discovery is for people in court cases to use with each other AND third partiesn Although most discovery occurs between the two sides it gives either side the power to require third parties to give information and documents. Typically, this can include banks, credit card companies, employers, and businesses. In some cases, parties can get records simply by requesting them but if a third party refuses, a “subpoena” can force them to comply.

The When

In general, discovery is available as soon as a case is filed and lasts until the judgment is signed. However, there are specific timelines for each tool including deadlines to comply with discovery demands, prior notice of discovery and when a side must follow up if the demand is refused.

The Where

The basis for the discovery tools is found in the Oregon Rules of Civil Procedure (“ORCP’s”), the Oregon Revised Statutes (“ORS”) and the Uniform Trial Court Rules (“UTCR’s”)

Why and HOW does discovery help you get on with your life?

The Why

The purpose of discovery is to ensure accuracy and fairness so families can move on with their lives. Discovery helps each side get information they need to decide whether and how to settle OR to explain and prove their position to the judge. Without discovery, the person who didn’t manage the finances, care for the children or perform roles can’t figure out the case let alone convince the judge of their position.

Subpoenas, mandatory discover and productions, oh my!

Most discovery in family law cases centers on getting documents as there is a “paper trail” in our lives: our finances, our parenting, our schedules, and our jobs all have related documents. These documents hold the details that are often key to proving a point: who had the money to buy a house; how took on most of the parenting; what the lifestyle really was; and who has the ability to earn what.

To help get cases started, Oregon law has a tool for parties to exchange limited and basic documents called “mandatory discovery.” If either side elects to use this tool, both parties have to give each other the items on the list. Most self-represented litigants only ever use the mandatory discovery tool.

While it is a good starting point, it usually doesn’t go far enough back or cover enough categories of documents if one side is trying to hide money, assets or important facts. To get that information, more tools are needed.

Sadly, most self-represented litigants never get the benefit of document productions because they don’t know how to make them or use subpoenas to force third parties to give them information because they don’t know this tool exists or how to access it.

By contrast, almost all lawyers use document requests and subpoenas in their cases. They use these tools to identify and get evidence of key facts that will prove their case. And because discovery is so well understood by the lawyers, they will often combine document discovery with question and answer tools such as “requests to admit” and “depositions.” In fact, depending on the firm or the lawyer, some will use every tool in the kit to uncover all the key information they need to prove their case.

For the self-represented litigant, these discovery demands can feel invasive, overwhelming and unnecessary. While there are rules to protect against discovery that is done merely to create these feelings in the recipient, use of the rules is often limited to the lawyers as there simply aren’t many resources available to explain the complexities of discovery.

At Rogue Family Law, we provide education, coaching, tools and resources to help you with all parts of your family law case, including discovery. Apply today to begin the conversation.

The point is not to let your fear of discovery stop you from finding out not only what’s in your wallet but what’s in your spouse’s. Your financial future depends on it to a large degree.