What in the world is “DISCOVERY” and why do I need to do it?


You completed your Financial Affidavit, and that was brutal. Whoever decided you needed to go through months of expenses, endless pages of credit card statements, utility bills and the like to come up with what you spend per month to run your household had to be playing a cruel joke on you . . . and it’s over, right? Not so fast, my friend. For some people it can be enough; for others, it’s just the beginning of the discovery process in divorce litigation.
Discovery, in the context of the financial aspects of your case, is the process by which your divorce attorney investigates and assigns values to your assets and your liabilities. Sometimes, we have to assign a value to an asset which we can’t determine simply by reading a statement – like the value of your business, the present-day value of your pension, the value of intellectual property, etc. Those require an expert for valuation. Discovery is also a necessary tool to establish your lifestyle, your earning potential, and employability. In the context of disputes involving parenting, discovery also includes establishing addiction or mental health issues which impact parenting, substantiating abuse, or uncovering factors that would lead a court to elect one parenting plan over the other.
Whether it is financial discovery or parental discovery, we have many tools to use to gather this information. For example, there are:
Interrogatories. Interrogatories are written questions propounded to you, or served by your attorney upon the other party, which require written answers within 28 days from the date of service. Standard matrimonial interrogatories range from questions about sources of income over a period of time to the witnesses you anticipate calling at trial. The Illinois Supreme Court has prescribed “standard” form interrogatories in divorce cases. For parenting matters, these interrogatories may include questions about parenting time, exposure of the children to significant others, or mental health issues affecting the family. Lawyer jargon for Interrogatories – “213s” – this refers to the Illinois Supreme Court Rule on Interrogatories.
Request for the Production of Documents. Usually served simultaneously to the Interrogatories are standard production requests. In divorce cases, you are likely to be required to produce a variety of statements (bank, retirement, brokerage, credit card, etc.), tax returns (personal and corporate), real estate documents, evidence of liabilities and more. Often times, these documents are requested going back three years. Separate production requests for parenting could include diaries, calendars, videos or records documenting concerns about the other parent. Lawyer Jargon for a Request to Produce – “214s” – again referring to the Illinois Supreme Court Rule on Production Requests.
Seasonably Supplement. Simply put, it’s not over until it’s over. Yes, you’ve produced records going back three years, but in a few months as your case progresses, those statements have piled up again, you file another year of taxes, etc. and yes, you are required to supplement your production. It’s not realistic or required to turn over documents as they come to you, but generally, discovery is updated when the other side asks for an update or when your attorney determines it necessary to update your production, or answer interrogatories to which you previously stated, “Investigation continues.”
Subpoena (Records Only), sometimes labeled by its Latin moniker, “Subpoena Duces Tecum.” There may be relevant information to which you and the opposing party has no access – thus, the best way to secure this information is through a Subpoena issued and served for the delivery of records only. Often times, these subpoenas are served on banks, employers, and financial advisors.
Subpoena for Deposition. As your trial date is approaching, it’s common to take the depositions of third parties. The time limit for a deposition is three hours, unless you, the deponent and the other side agree otherwise, or the court has granted you additional time. The deposition usually takes place at an attorneys’ office and is transcribed by a court reporter. Here, the side calling for the deposition asks questions to that individual, to be answered under oath. The person requesting the deposition may ask the deponent to bring records with him/her when he/she appears for the deposition. Who receives a subpoena for deposition? The attorney representing the other side could serve this on anyone disclosed on your witness list: your sister who has observed your parenting, your expert who has valued the marital home, or your employer regarding the scope of your employment.
Notice of Deposition. These are like subpoenas, but are served on parties to the case. The same time limits and exceptions to deviate apply. Like deposing third parties, the person requesting the deposition may require the deponent to bring records with him/her when he/she appears for the deposition. We help you prepare for the questions which could be asked of you at your deposition, when you become the deponent.
Waive or Reserve Signature. You will hear the court reporter ask the deponent at the conclusion of the deposition if he/she would like to waive his/her signature or reserve it. The deponent has a right to review the deposition transcript before it is delivered to the party who orders it. The review consists of clarifying spelling, or fixing a minor phrase which was not taken down correctly. The substantive answers in a transcribed deposition, however, cannot be changed. That is why you need to be well prepared in advance of your own deposition. If signature is “waived,” the deposition will be written, as transcribed, without review, if it is ordered. If signature is “reserved,” the court reporter will contact the deponent and offer time to review the transcript at his/her offices. Usually the court reporter allows just a short time for the review to take place. If the deponent cannot accommodate the quick time schedule, the deposition is written as is.
You and your attorney will determine which steps are necessary and a fit for your situation. So be prepared for your next round of discovery.