Discovery Divorce Proceeding

Definitions

Discovery: A procedure designed to allow disclosure of information between Plaintiffs and Defendants. Written questions, oral questioning, document production and admissions requests are generally allowed. Discovery was designed to to prevent trial by ambush.

Interrogatories: Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed to the Plaintiff, Defendant or the attorney for response in writing. The answers or responses are usually due between 20-30 days.

Deposition: A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions are usually recorded by a court reporter, who swears the person to tell the truth before questioning begins.

Production of Documents: The method of obtaining documents from the other party relevant to the case such as all documents a party intends to introduce at trial.

Requests for Admissions: Written questions where you request the other party to admit or deny some relevant fact.

Objections: Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery of relevant evidence.

Civil Procedure Rules: Virtually all states have adopted a version of civil procedure rules which include rules dealing with discovery.

Delaware Rules of Civil Procedure

Delaware has adopted the Delaware Rules of Civil Procedure for Superior Courts. These provisions contain rules governing discovery. The discovery rules also apply in divorce actions.

Discovery Methods: Parties may obtain discovery by one or more of the following methods: depositions upon oral examinations or written questions, written interrogatories, production of documents or things or permission to enter upon land or other property, physical and mental examinations, and requests for admission. Rule 26(a)

Scope: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Rule 26(b)

Experts: A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial. Rule 26(b)(4)

Sequence and Timing of Discovery: Unless the court orders otherwise, methods of discovery may be used in any sequence. Rule 26(d)

Supplementation of Responses: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to information acquired, except as follows: the party is under a duty seasonably to supplement his response with respect to a question concerning the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at trial. A party is also under a duty to amend a prior response if the party knows the response was incorrect when made or he knows the response though correct when made is no longer true. Rule 26(e)

Discovery Conference: At any time after service of the summons, the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. Rule 26(f)

Depositions

Before Whom Depositions May Be Taken: Within the United States or within a territory subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States, or the place where the examination is held, or before a person appointed by the court in which the action is pending. Rule 28(a)

If the deposition is taken in a foreign country, it is proper to take the deposition on notice before a person authorized to administer oaths in the place in which the examination is held, or before a person commissioned by the court, or pursuant to a letter rotary. Rule 28(b)

Stipulations: Unless the court orders otherwise, the parties may by written stipulation provide that depositions be taken at any time, any place, and upon any notice. Rule 29

Interrogatories

Any party may serve upon another party written interrogatories to be answered by the party served. Each interrogatory shall be answered fully in writing and under oath. Rule 33

Production

Any party may serve upon another party a request to produce certain documents, not privileged, to be inspected and copied. Rule 34

Physical and Mental Examination of Persons

When the mental or physical condition (including the blood group) of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or control. Rule 35

Requests for Admission

A party may serve upon any other party a written request for the admission, of the truth of any matters within the scope of Rule 26.02 set forth in the request, including the genuineness of any documents described in the request. Rule 36

Compel Discovery

A party, upon reasonable notice to the other parties may apply for an order compelling discovery. If a party refuses to allow inspection or fails to answer a question propounded or submitted under Rule 30 or 31, the discovering party may move for an order compelling an answer. Rule 37

Domestic Actions Discovery Notes

If you require extra time to respond to discovery, you should ask the other side for an extension in writing. It may also be necessary to enter an order granting the extension to protect your rights.

Discovery questions are limited in number so select the most important questions to ask the other side. Don't waste your requests writing questions that you already know the answer to.