What Happens If One Side Fails Adequately To Respond To Discovery?

With requests for admissions, if the other party fails to respond within twenty-eight days, the facts that you asked them to admit are deemed admitted, and essentially proven for purposes of your case. Those admissions can be set aside, or amended if the other side files a motion demonstrating good cause why they should be set aside, or amended. They are generally not that easily set aside, particularly if you are near the end of the case. As far as other discovery, such as interrogatories, request for production of documents, if the other side files frivolous objections, or fails to answer them, then the next step is to file what is known as a “statement of discovery issues,” as described in Utah Rule of Civil Procedure 37.

Statement of Discovery Issues: This is a short document explaining to the court that the other side has failed to adequately respond, and asking the court to order them to do so, and pay your attorney’s fees for the necessity of filing the motion, or to sanction the other side in some other way. Once you file a statement of discovery issues, the other side has only seven days to file their response. The Court will then typically set a hearing, and rule on whether the other side has to respond to the discovery as you asked. If the court orders the other side to provide the additional discovery, and they fail to do so, you can file what is known as a “motion to compel discovery” asking the court to sanction the other party for their failure to comply with discovery orders.

To sanction a party failing to comply with discovery, the court can order attorney’s fees, or they can order the fact you are seeking to establish as having been “established” for purposes of your case, because the other side will not respond to the discovery on this issue. The court can strike the other party’s defenses and claims on that issue, and declare that you have won on that issue. Also, the court can strike the other party’s pleadings altogether, enter their default, and give you everything that you requested in your petition or counter-petition.

How Expensive Is Discovery? Is It Worth It?

Paper discovery, which would involve subpoenas, interrogatories, requests for production of documents, and requests for admissions, can be comparatively expensive, because it is generally only paying the attorney’s time to draft the discovery requests, and to draft any statement of discovery issues necessary to force the other side to comply.

Depositions are more expensive, because for every hour in deposition, you are paying that attorney at least an additional hour to prepare for that deposition. Any self-respecting attorney will spend at least an hour preparing for a deposition for every hour they spend in deposition, so depositions are generally more expensive, because of the amount of preparation time, and the amount of time to conduct the deposition. Additionally, you have to pay a court reporter to appear, and take down everything that is said and produce a transcript. That said, depositions can be a very powerful way of building your case, and in my experience are usually worth the cost.

Expert discovery can be more or less expensive, depending on the type of expert you hire. Custody evaluations cost much more than parental fitness evaluations or visitations evaluations, because custody evaluations are broader in scope, and require more work. Vocational assessments or substance abuse assessments are not nearly as expensive. The degree of expense depends on the type of assessment, and how much time they spend conducting their assessment, evaluation, or appraisal. Most of the time, when using experts in discovery, it is more cost effective than attempting to prove the same things that you are asking the custody evaluator to evaluate by yourself, or just with your attorney.

For example, if you are trying to establish a party’s earning ability, the amount of time that your attorney would spend preparing to prove that fact without a vocational assessment might exceed the amount of money that you would spend having a vocational assessment performed. Therefore, if you can afford an expert to assist you in proving an important element of your case, and the other side is not being reasonable in settlement discussions, often using an expert witness is worth the cost.

Additionally, having an expert witness can create additional advantage to assist you in settlement negotiations, because if there is an expert by your side, particularly if it is a court appointed neutral expert, then the other side is going to have a difficult time challenging your expert’s report.

Additional Information About Discovery In Family Law Cases

It is important to have an attorney that is experienced in dealing on how to conduct discovery and is skilled in doing so. Otherwise, if you have an attorney that is inexperienced in this area, they may be wasting excellent opportunities to find information to help your case and give you the advantage.

For more information on Not Responding To Discovery, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children