During the discovery process, what happens if the opposing party doesn’t answer his/her discovery questions in a divorce or child custody battle?
What CAN happen (in Utah, where I practice family law):
(See Rule 37—particularly Rule 37(b)—of the Utah Rules of Civil Procedure)
If a party is failing to respond to discovery, you must first, before you can file a motion with the court, file a statement of discovery issues. The court then is to promptly decide the issues on the pleadings and papers, or conduct a hearing by telephone conference or other electronic communication, or order additional briefing and establish a briefing schedule before issuing an order.
If the party who is the subject of the court’s order still won’t comply with discovery as ordered, then the court, upon motion, may impose appropriate sanctions for the failure to follow its orders, including the following:
- deem the matter or any other designated facts to be established in accordance with the claim or defense of the party obtaining the order;
- prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence;
- stay further proceedings until the order is obeyed;
- dismiss all or part of the action, strike all or part of the pleadings, or render judgment by default on all or part of the action;
- order the party or the attorney to pay the reasonable costs, expenses, and attorney fees, caused by the failure; and
- treat the failure to obey an order, other than an order to submit to a physical or mental examination, as contempt of court.
- If a party fails to admit the genuineness of a document or the truth of a matter as requested under Rule 36, and if the party requesting the admissions proves the genuineness of the document or the truth of the matter, the party requesting the admissions may file a motion for an order requiring the other party to pay the reasonable costs, expenses and attorney fees incurred in making that proof.
What USUALLY happens (in my experience):
The party who wasn’t cooperating in discovery waits for you to complain to the court through your statement of discovery issues. Then in response typically gives excuses for failing or refusing to comply, such as a busy schedule, a crisis (real or fabricated), “forgetting” the deadline, and/or complaining that the discovery is unfairly burdensome. If your discovery is in fact not unfairly burdensome, then court (and although it’s irritating, it’s hard to blame the court most times) wags its finger at the non-compliant side, tells him/her to get it in gear, and gives the non-complaint side around 20–60 days (depending on how demanding the discovery is) to provide you with a response, or face the consequences (see above). Can you get an award of attorney’s fees for the opposing side’s non-compliance? In theory yes, in actual experience, usually not, unless the non-compliance is blatant.