Consequences To Not Responding To Discovery Requests

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

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9 comments on “Consequences To Not Responding To Discovery Requests

    My boyfriend has had custody of his 2 children since 2013 and his ex-wife has never paid child support. She does have standard visitation. He is now seeking child support. He was awarded child support after filing temporary orders. She appealed the decision and feels that she is not required to pay any child support based on her visitation schedule (she has them 28% of the time) and she feels he gambles too much and plays golf too much. There has been a Discovery process for both parties and now she has filed a Motion to Compel. This seems to be a stall tactic to me. Should his income, golf games, trips to a “gambling establishment” have any baring on whether or not she should pay child support in the state of Texas? BTW…. he provided all his 1040’s that included gambling winnings 2 times in the past 5 years for a total of $3200

    What happens when a motion to compel discovery was ordered by court for divorce as other party missed deadline of 30 days and another 6 weeks. Then was confused that they did understand what we were asking for. What happens next? It has been 2 wks and still nothing since order signed.

    My ex is trying to gain 50/50 with the children that I am (through agreed divorce and her mental issues) sole legal and physical and have full discretion as to her visitation, but has not produced any of the interrogatories. 6 months. A motion to compel has been made on the 5th. Still nothing.. what can I expect?

    In Arkansas it is a crime not to answer interrogatories she can expect a Fine, court fee and possible jail.


    My old lawyer asked for discovery that was not given. I had problems with the lawyer and retained new counsel . My new lawyer refuses to request the missing discovery . What can I do? It is fatal to my divorce case.

    I found out My spouse remarried before our court case was final for divorce/settlement agreement is he in trouble

    if a court date is marked”pending control date not cleared” does that mean that the case scheduled for that date will not be heard on that date?
    If a defendant fails to respond to compliance orders and discovery demands can the plaintiff case be dismissed?

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