Earlier this month, we posted the first part of this article, setting for the basics of what Denver area family law attorneys call "discovery." As previously indicated, discovery is generally issued in divorce, custody, or child support cases when one side believes more information is needed. This can include a heightened request for documents, generally financial in nature, or requests for questions to be answered, whether of a child related or financial nature. Discovery in a family law case will generally entail interrogatories (questions to be answered) or requests for production of documents. Your attorney can assist you with determining whether the specific facts and circumstances of your case warrant, or necessitate, the issuance of discovery.
Some examples of when discovery might be needed would be in a situation in which the wife has handled all of the family finances or, perhaps owns a business. In such an instance the husband might be in the proverbial dark as relates to the family finances, past or present, and may be in need of further information for purposes of assessing a divorce settlement or preparing for court. Interrogatories may be a useful tool for purposes of ascertaining the other side's position as relates to custody issues, or perhaps for purposes of boxing them into specific written answers which can be used in court. As indicated in the prior posting on this subject, when one side issues formal discovery, it is extremely likely that the other side will do the same. Set forth below are some common rules or pointers for both issuing discovery, as well as responding to it.
1. Pursuant to the Colorado Rules of Civil Procedure, discovery must be issued 63 days before a hearing. Generally, this would be the final divorce or custody hearing. In some instances, there may be interim hearings set, such as a temporary orders hearing. Discovery can be issued less than 63 days before these interim hearings, but one must be aware of that 63rd day prior to the final disposition of the case. Though courts can sometimes be flexible or lenient with deadlines in a family law case, the technical rule would be that discovery issued within that 63 days is issued improperly. When faced with improperly issued discovery, one should look at filing an objection to the request within the time frame allotted.
2. Discovery may not be issued prior to the initial status conference in any case. Pursuant to C.R.C.P. Rule 16.2, parties must first attend the mandatory touch base conference with the court prior to issuing discovery. Some counties may even issue case management orders indicating that permission must be sought from the court prior to issuing discovery. Parties should be aware of the provisions set forth in their case management orders. From time to time, we do even see attorneys issuing discovery early, or late. In those instances, and objection is also appropriate.