11. Discovery – How can I get documents or prove they are hiding assets?

The process of gathering information from an opposing party is called discovery. The California Code of Civil Procedure contains four principal mechanisms to afford the parties the means to gather information. The San Diego superior Courts do not have specific rules related to discovery, but follow the state civil procedure discovery rules. The four principal methods of discovery are as follows:

  1. Interrogatories are written questions that the opposing party must answer. There are two types of interrogatories. First, there are form interrogatories (Cal. Code Civ. Proc. § 2030.020) contained in Judicial Council Form DISC-001. There are also special interrogatories that may be crafted to seek information unknown to a party, but are limited in number to a total of 35 (Cal. Code of Civil Proc. § 2030.030(a)-(b)) absent an agreement or court permission to ask more than 35 questions (Cal. Code Civ. Proc. § 2030.030(c)). Respondent may serve interrogatories at any time, and the petitioner may serve interrogatories either ten days after service on respondent or respondent’s appearance in the case, whichever is earlier (Cal. Code Civ. Proc. § 2030.020(a)-(b)). Special interrogatories cannot be compound, conjunctive, or disjunctive (Cal. Code Civ. Proc. § 2030.060(f)). The opposing party has 30 days to respond in writing absent an agreement for additional time (Cal. Code Civ. Proc. § 2030.260(a)). The time to respond is extended if the interrogatories were served by mail (Cal. Code Civ. Proc. § 1013)). The responding party may object to interrogatories provided the objections are made within the time to respond. Objections are waived if a timely response is not made (Cal. Code Civ. Proc. §§ 2030.210(a)(3) 2030.260(a)). Objections must be separately stated and include the basis for the objection (Cal. Code Civ. Proc. § 2030.210(c)).

  2. Depositions are the taking of testimony from a party or witness outside of a courtroom sworn before a stenographer (or commonly referred to as a court reporter (Cal. Code Civ. Proc. § 2025.330)). A party or witness may be deposed for a total of seven hours absent an agreement or court order to the contrary (Cal. Code Civ. Proc. § 2025.290(a)). Respondent may serve a deposition notice anytime, and petitioner may serve a deposition notice 20 days after service or respondent’s appearance, whichever is first (Cal. Code Civ. Proc. § 2025.210). The notice must be at least ten days before the deposition (Cal. Code Civ. Proc. 2025.270(a)) and must include the name of the party deponent (if a non-party, their name, address, and phone number) along with the intention to use audio or video at trial (Cal. Code Civ. Proc. § 2025.220(a)). A party may be required to bring documents to the deposition (Cal. Code Civ. Proc. § 2025.220(a)(4)). If there are objections to a deposition notice, they must be served at least three days before the deposition (Cal. Code. Civ. Proc. § 2025.410).

  3. Requests for Admission are written statements that the responding party is asked to either admit or deny, and they may ask to admit the genuineness of document (Cal. Code Civ. Proc. § 2033.010). Respondent may serve requests for admission at any time, and petitioner may serve them ten after service or respondent’s appearance, whichever is first (Cal. Code. Civ. Proc. § 2033.020). Requests for admission are also limited to a total of 35 absent an agreement by the parties or court order (Cal. Code Civ. Proc. § 2033.030) and must be in a separate document from any other discovery request (Cal. Code Civ. Proc. § 2033.060(h)). However, requests to admit the genuineness of documents are unlimited in number (Cal. Code Civ. Proc. § 2033.030(c)). A response to requests for admission must be made within 30 days of service, which is extended by five days if served by mail (Cal. Code Civ. Proc. § 2033.250). Each response must provide an admission, denial, or a statement of insufficient knowledge or information (Cal. Code Civ. Proc. § 2033.220), and failure to timely respond waives all objections (Cal. Code Civ. Proc. § 2033.280). If there is a denial of a fact or genuineness of a document that the other party ultimately proves the truth of, the court may order the denying party to pay fees and costs incurred in so proving the genuineness of the document or fact in the matter (Cal. Code Civ. Proc. § 2033.420).

  4. Demand to Produce Documents is a written request to either inspect original documents, or more commonly, to have copies produced to the opposing party (Cal. Code Civ. Proc. § 2031.210). Respondent may send such a demand at any time, and petitioner may serve a document demand ten days after service or after respondent’s appearance, whichever is sooner (Cal. Code Civ. Proc. § 2031.020). The responding party has 30 days to allow the inspection or to produce copies (35 days if served by mail (Cal. Code Civ. Proc. § 2031.260)). There must be either an objection or a separate response to each item demanded (Cal. Code Civ. Proc. § 2031.210). While a party is not required to create documents to comply with such a demand, documents that one may reasonably access shall be produced (Cal. Code Civ. Proc. § 2031.230). Failure to respond timely waives all objections to the production demands (Cal. Code Civ. Proc. § 2031.300).

In addition to the above discovery methods, expert witnesses, such as a child custody evaluator, child psychologist, or property evaluator may be utilized (Cal. Evid. Code § 730). Expert witness information must be exchanged between the parties (Cal. Code Civ. Proc. § 2034.210 et seq.).

If a party abuses the discovery process, the opposing party may file a motion for sanctions that identifies the person to be sanctioned, the authority for such a sanction, and contain a declaration establishing the type of discovery abuse (Cal. Code Civ. Proc. § 2023.010 et seq.). The types of abuses include persistent requests for non-discoverable material, using methods to annoy, harass, oppress, embarrass or burden the other party, failing to respond, making unmeritorious objections, evasive responses, and failing to meet and confer when required. The court has a variety of sanctions available including monetary sanctions, finding facts to be true, denying a noncomplying party to submit evidence, staying a case, or even entering a default on one more issues against the sanctioned party (Cal. Code Civ. Proc. § 2023.030).

It is important to have a discovery plan from the outset as discovery is cut-off 30 days before the date initially set for trial, and a continuance does not re-open discovery (Cal. Code of Civ. Proc. § 2024.020). A party must comply with reasonable discovery requests and use due diligence to produce the discovery requested. However, a party is not required to manufacture evidence in order to respond to a discovery request.

For example, Jim and Donna are going through a divorce and Jim has his own pool cleaning business. Donna thinks Jim is not disclosing his full income because during the marriage Jim made deposits from his separate business account to the parties’ joint bank account. Jim stopped doing this after the divorce was filed and claimed that his business was failing. Donna sends Jim a demand for production of documents seeking, among other things, “all spreadsheets, worksheets, and documents of any kind showing income to Jim for the past five years.” Jim uses QuickBooks for his invoicing and to track his business income. Jim also has a business bank account where he makes cash and check deposits. Jim would need to print QuickBooks summaries of all his income and provide bank statements from his business account for the past five years. However, Jim would not be required to create a spreadsheet or worksheet that doesn’t already exist. Jim would also not be required to produce records of the joint bank account because Donna has just as much access to those records as Jim does. Providing the QuickBooks and business bank documents along with a written response explaining what Jim is producing in a timely manners would satisfy Jim’s discovery obligation.

When responding to discovery, it is important to have an attorney well-versed in what must be produced and what appropriate objections may be in a given case. It is also important to know who and what documents may be subpoenaed outside of the discovery scheme discussed above (Cal. Code Civ. Proc. § 1987).