Purposes of Disovery

Discovery serves several purposes in divorce litigation.  On a basic, straightforward level, it serves to inform counsel and the client about factual information necessary to evaluate the case, such as the nature of the income and assets of the other spouse.  Secondly, discovery is a trail preparation tool, used, for example, to identify lay witnesses, independent expert witnesses, and controlled expert witnesses together with the nature of their testimony.    

Discovery in divorce litigation also can be useful on a third level.  Divorce often is an emotional and very personal process, unlike some other forms of litigation.  Discovery can be properly used to bring pressure on a party to settle either the entire litigation or a portion thereof, and it can also be abused to harass a party to settle the litigation.  By way of example (and the examples are limited only by the imagination), deposition subpoenas (or the prospect that they will be issued and served) directed to other members of the family (parents, brothers and sisters, etc.) or the employers, supervisors, business colleagues, customers, etc., may serve to provide useful information and also may be considered as harassment by the party on the receiving end of the subpoenas.  Based on the facts in the case, at times such subpoenas will clearly be proper, and at times such subpoenas will clearly be abusive.  Many times, such subpoenas will be neither clearly proper nor clearly abusive and will fall into that gray area familiar to practicing divorce lawyers.

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