April 4th, 2023


By:  Andy C. Scholz and Heather Rooney McBride

Your attorney’s use of discovery is essential to giving your domestic case the highest chance of success. The most common methods of discovery are interrogatories and requests for production of documents. Before preparing these documents for a particular case, your attorney should make sure to check the applicable local rules, since many courts have adopted form discovery for domestic relations cases.

When it comes to requests for production of documents, your attorney’s best strategy is asking for more rather than less information. At a minimum, it is a good idea to ask for three years’ worth of information, and there are cases where a request for five years would be justified. Your attorney should start thinking about discovery from the moment the petition is drafted. You can make a list of all the issues you anticipate in the case, and your attorney can use that list when he or she drafts your interrogatories and request for production. Sometimes, the first set of discovery requests can result in the realization that a second set should be sent for more details. Most attorneys start with broader questions and requests, and then work down to specific requests as the case progresses. Sometimes counsel will reach an agreement whereby the parties will not answer questions regarding marital misconduct so as not to dampen the chances of settlement in the case.

When the opposing attorney sends discovery, your attorney should review the questions to determine if the opposing attorney has made any objectionable requests. Areas of concern include the following: requests that attempt to invade attorney-client privilege or doctor-patient privilege or seek anything that could be attorney work-product. When dealing with medical or counseling records, your attorney should make sure he or she is aware of the requirements under HIPAA. Additionally, your attorney should review the discovery for any requests that are overly burdensome, particularly when the time period requested is broad. It is very important for your attorney to know your particular judge’s approach to discovery, so that he or she can anticipate what will be considered too broad. Judges usually err on the side of more information being exchanged rather than less.

Some information is better explored through the use of depositions after the groundwork is laid with written discovery. A request for documents can accompany the notice of deposition, so requesting any updated documents or additional documents is a good idea because your attorney can then ask the deponent about the updated documents at the time of the deposition. Keep in mind that asking to take the other party’s deposition will likely result in a request from the opposing attorney to take your deposition as well.

It is also common in domestic relations cases to take the deposition of professionals involved so as to accommodate their schedule and to dispense with the need for their personal appearance at trial. Some common third-party witnesses are teachers, doctors, and counselors. A deposition can be used at trial for any purpose. Excerpts from the party’s deposition can be used as an exhibit at trial. Many times, records depositions are required when requesting medical or counseling records. Protective orders should be drafted and used when sensitive information is being exchanged between the parties. Care should also be taken to prevent parents from discussing the children’s counseling records with the children.

It is important to make sure you are fully answering discovery in a timely manner. Judges can assume a failure to answer discovery is an attempt to hide information.  This can result in monetary sanctions or an order to pay the other side’s attorney’s fees. Some judges will allow releases to be signed that will allow the opposing attorney to get documents directly from the provider. These are best used when the client does not have a full set of the requested documents in his or her possession.

It is essential for your attorney to carefully review the documents you have provided for completeness, responsiveness, and hidden information. Keeping detailed and organized records of the documents produced, especially in cases with businesses involved, will help fend off challenges that information has not been supplied. If the opposing party fails or refuses to answer propounded discovery, the best practice, which may also be required under local rules, is to send a “golden rule” letter reminding the opposing attorney that that the answers are overdue. If the opposing party still refuses to answer, your attorney should draft a Motion to Compel asking the court to order the answers to discovery or face sanctions.

One of the greatest challenges in a domestic case can be finding and tracing hidden assets. If you suspect your former spouse is hiding assets, your attorney’s first step should be to have the opposing party sign a release form which will authorize your attorney to seek information from banking and employment organizations. It can also be helpful to search the Secretary of State’s online database to locate businesses where the opposing party is listed as an owner, organizer, member, manager, shareholder, or registered agent.  If your initial investigation bears out your suspicions of hidden assets, you should consider the use of an accountant trained in forensic tracing. However, you should be aware that forensic tracing can be expensive, and you should have a careful conversation with your attorney regarding the cost/benefit analysis of the tracing before a forensic accountant is employed.

Social media can be both a blessing and a curse in domestic cases. It is a blessing when the opposing party provides useful information for the court to consider, and it is a curse when you reveal damaging information or opinions about yourself.  It is a good idea to discuss social media posting with your attorney at the very beginning of your case. Some clients are fine with the cancellation of their Facebook or Instagram accounts. Other clients view such a suggestion as unnecessary or impossible. A candid discussion with your attorney regarding what is and what is not appropriate for social media can save you a lot of future headaches. If the opposing party has relevant evidence on his or her social media accounts, consider the use of a spoilation letter to the opposing attorney or a spoilation order from the court. This process limits the opposing party’s ability to destroy or delete relevant evidence.

If you manage to locate useful information on social media or through an investigation of electronic evidence, the next question is how you will be able to admit the material into evidence. You should consider the use of requests for admissions as an easy way to authenticate social media evidence. Your attorney should attach and mark the social media post as an exhibit to the request for admission, and then ask the opposing party to admit that the exhibit is a true and accurate copy of a social media post he or she authored. Remember, in Missouri, a failure to answer request for admissions within thirty days is deemed an admission for the purposes of trial.

If you would like to speak with an attorney about discovery, divorce, or your options regarding any domestic matter, please contact Rooney McBride & Smith, LLC at 417-708-9681 for a free consultation.