In virtually every divorce proceeding, a crucial phase known as discovery unfolds. Discovery involves the exchange of pertinent information between the spouses, typically through requests such as Interrogatories or a Notice to Produce Documents. Each party is obligated to respond to these requests within the stipulated timeframe. Should one side resist compliance, various legal avenues are available to compel them to furnish the required information.
- File a Motion to Compel the other side to produce the documents and, if they still refuse, to dismiss their Complaint. The motion will outline the reasons for seeking a dismissal of the Complaint and the non-compliance with the discovery requests. If the Judge finds that that party’s failure to produce was unjustified, their Complaint for Divorce or responsive pleadings may be dismissed. The consequences of getting the other parties Complaint or responsive pleadings dismissed could be detrimental to them since they will not be able to present any evidence in support of the requested relief. The Court should hold a final hearing with only your evidence, at which time the Court could accept everything that you assert as accurate.
- File a Motion to Compel only. If you first made an attempt to resolve the outstanding discovery issues through a correspondence with the other side (a meet and confer), you can initiate a formal legal process by filing a motion to compel. The motion will request that the court order the other side to produce the requested information within a specified timeframe. If they do not respond even after being ordered to do so, the Judge can find them in contempt of court and issue sanctions. Although severe, the consequences could be detrimental.
- Notice of Deposition. Another effective method to secure the requested information is by issuing a notice of deposition to the other party. The notice may include a rider asking for the same documents outlined in the Notice to Produce Documents. The Deposition Notice would require that party to appear on the specified date and time, under oath, with a court reporter present. During the deposition we can pose specific questions to gather the necessary information.
- Subpoenas. You can utilize subpoenas to obtain information directly from the financial institutions where you believe the other party holds accounts, which would compel these companies to provide relevant financial records. Subpoenas may be sent to out of state entities.
Additionally, if the requested discovery remains unproduced and the case proceeds to trial, the court may take several actions, including preventing the other party from presenting any evidence at trial or drawing an adverse reference that the undisclosed documents are unfavorable to their position. Furthermore, you will have the opportunity to present a request to the court for an award of the legal fees caused by the other party’s failure to participate in the mandatory process.
The consequences for failing to respond to discovery can be detrimental. So, before you play games with discovery and fail to respond, contact the Family Law Department at Cohn, Lifland, Pearlman, Herrmann & Knopf LLP to discuss your options.