Discovery is the organized system in the Texas Rules of Civil Procedure for parties to exchange information with each other. The purpose is to give everyone access to the same information so that the case can settle with every party being fully aware of the extent of their estate. It is meant to create some transparency between the parties so that if they do in fact settle, each party can be sure that they have had all of the necessary and material information to be able to settle in confidence.
Despite what you see on TV and in the movies, cases with good lawyers who have conducted adequate Divorce Discovery, rarely have any surprises once they get to the final trial. It is pretty rare that there will be a surprise witness or evidence introduced for the first time at trial. There must be some extenuating circumstances such as the evidence had just come into that party’s possession and the party had no prior knowledge that such evidence existed before then. Even then, the judge will weigh the evidence’s probative value against the prejudicial effect that it will have on the surprised party and decide whether or not such evidence can be used in court.
Cases can be won or lost in the Discovery phase of a case. Failure to conduct appropriate Discovery can result in a surprise at trial that can be fatal to your case. If the other side has a recording of you threatening your ex-spouse, trust me, you will want to know about it. Additionally, failure to obey the rules of Discovery can result in serious sanctions from the Court that can cripple or even destroy your case.
How Much Will Discovery Cost?
Let me be frank about the cost. Discovery can get to be expensive. In fact, it can cost many thousands of dollars to do proper Discovery, and many people have given up on their cases so that they don’t have to pay the cost of Discovery. This is commonly referred to as “spending your opponent into submission” and more cases have probably been won this way than on merit alone.
What is “Discoverable”?
Be prepared for a full and invasive exam of everything relevant in your life during your marriage or since the child’s birth. There are plenty of things that could be relevant. Your bank statements, phone records, text messages, journals, title to your vehicles, copies of checks, social network accounts, even receipts for certain purchases could be relevant to the litigation. What is relevant will depend on the issues at hand and the accusations made by either or both parties.
There really is not anything off-limits, except maybe a few private medical details (and most of those are fair game). This is largely true even in a non-divorce child custody matter. The other party may be entitled to get details and documentation regarding your :
Finances (tax returns, debts, business records, credit reports, bank statements, etc.);
Communication (emails, text messages, IM messages, phone records, social media accounts (i.e. Facebook posts), etc.));
Your Medical History (mental treatment & issues, substance abuse issues, anything that may impact custody of the child(ren);
Sexual Behavior (sexual Preferences, unusual practices, affairs, paramour(s));
Parenting Skills (anyone’s parenting skills that will have physical possession of or have access to the child(ren); and even
Relationships (your family, friends, co-workers, neighbors, employers, etc.).
When considering the information that is discoverable, the list goes on. It can be pretty horrible: your grandmother may get deposed and the other lawyer may ask her some embarrassing or personal questions about you. Your work emails may be subpoenaed. Your next-door neighbor may be forced to testify about you in court. Your doctor may be forced to testify about your treatment for depression.
Moreover, modern technology has revolutionized Discovery. It is amazing what people will put in emails, texts and on their Facebook pages. People say things that they would have never said in the past, and it is recorded for all time (and the world to see). You think that you can erase it? You can be sure that the stupid email you sent 6 years ago can still be found. And that Facebook picture you took down after 24 hours – it is still out there…somewhere.
People do get away with lying and hiding things in Court, even with Discovery being conducted. But, a good lawyer with a proper budget can usually minimize this. Even worse, if you are caught lying/hiding things during Discovery, the consequences are severe. Most people are better off just being open, and taking their lumps.