by Erik Carter, JD, Cordell & Cordell, PC
The discovery process is one of the most important parts of your family law litigation. You may have sent Interrogatories and Requests To Produce Documents to your ex, and you may have to answer these same discovery requests. But what if you don’t want to respond to them? Or what if she never responds to your requests? Do the questions and requests just hang out there, unanswered? Or are there are consequences?
There are consequences for not responding to discovery requests. Some of the more common consequences are (these may have different names in your local jurisdiction, but there should be a mechanism to achieve the results listed below):
Motions To Compel: requesting the Judge to enter an order that the other party must reply to the discovery requests. This is a pleading to the Judge, letting the Judge know:
1. That you had sent discovery requests;
2. When you sent the discovery requests;
3. What the deadline for replying was;
4. That she missed the deadline;
5. That you contacted her about her failure to respond to the discovery(Some jurisdictions require this.);
5. That you have no alternative but for the Judge to order her to reply.
The Judge, if he finds in favor of your Motion To Compel, will then give here a “drop dead” date to respond by. If she doesn’t respond by this deadline, then some of the consequences below can be imposed.
1. Attorney’s fees for bringing Motions To Compel. Since the filing of a Motion To Compel is not normally done, you should not have to pay an attorney to prepare and file one. Especially since your lawyer is doing it because the other party was violating the rules. So the court can order that your attorney’s fees be paid. Usually this is enough of a threat of a sanction to have the other side comply.
2. Exclusion of evidence. One of the most extreme sanctions is simply not allowing the other side to present any evidence that would have been produced under the discovery requests. For example, say one of your requests was “List all the reasons why you have denied FATHER his scheduled parenting time.” If she doesn’t reply to this request, and the Court has tried various Orders compelling compliance, the court may just say simply that she cannot present any reasons why you were denied your parenting time. In other words: she cannot present a defense. Wouldn’t that make going to court easier?
3. Presumptions that requested items would be contrary to her position. Again, let’s say that you have asked for “all medical records and doctor’s notes for the past six months” because she is claiming that she is disabled and needs maintenance from you. And she refuses to produce the records, and she invokes privacy laws when you try to subpoena them. The court is allowed to presume that she has not responded because the medical records will show that she is in fact not disabled, and that therefore she has no support for her claim to maintenance. Wouldn’t that make going to court easier?
Using discovery to uncover her case is an extremely important mechanism, and can ultimately save you a lot of time and money. However, the discovery requests must be followed through, especially if her response is no response at all. By quickly and aggressively seeking consequences to her failure to respond to discovery requests, you and your lawyer can either destroy her case or save yourself a lot of hours and money spent in court.
Erik H. Carter is a Senior Attorney of the Cordell & Cordell, P.C. office in Indianapolis, Indiana. Mr. Carter has practiced since 1993 as an attorney. He is licensed in Illinois, Indiana, Pennsylvania as well as the Northern District of Indiana and the Southern District of Indiana. Read more