DISCOVERY BASED SANCTIONS IN FAMILY LAW CASES

Monetary sanctions based on the failure to provide proper responses to discovery requests

Divorce sanctions in family law

Discovery Based Sanctions in Family Law Cases

Discovery sanctions are outside the Family Code. California Code of Civil Procedure governs how and when a family court should award such sanctions. That is because discovery sanctions are not limited to family law cases but apply to civil cases in general.

We are not going to discuss in great detail the nature and extent of discovery sanctions. Instead, we will discuss generally how a court may award such sanctions in a family law case.

First, what is discovery? Discovery is a formal fact-finding process where one party seeks information from the other party and the other party must provide the information under oath. The most common discovery requests are:

  1. Form interrogatories which are preprinted written questions.
  2. Special interrogatories which are custom drafted questions.
  3. Oral depositions which are question and answer sessions that typically take place by one party's attorney of the other party.
  4. Request for production of documents which are a party's request the other party produce certain documents.
  5. Request for admissions of facts which are a request by one party to the other party to admit certain facts as true.
  6. Request for admissions of genuineness of documents which are a request by one party to the other party to admit certain documents as being genuine.
  7. Physical or mental examinations, although these are less common in family law cases.
  8. Property inspections, although these are also less common in family cases.

The above are not the only types of discovery requests. As one example, subpoenas are a form of discovery but subpoenas generally direct a third person, and not a party to the action, to produce documents. The above are more common types of discovery in family law cases.

So what happens when a party refuses to respond to discovery or provides evasive responses that violate the Code of Civil Procedure? A lot can happen in such a circumstance. Typically, the party who requested the discovery will send a letter or have a discussion with the other party about these issues. Of course, each party's lawyers typically handle this. If the parties cannot resolve the issues, then the requesting party may file a motion to compel. A sanctions request, which is a request for fees and costs, accompanies that motion to compel.

Discovery sanctions are not based on need or ability to pay. Unreasonable financial hardship is also not a defense. Family Code 2030 through 2032 and Family Code 271 are irrelevant to discovery sanctions. Most discovery sanctions statutes state the court shall award attorney fees and costs to the winner and against the loser unless the loser had substantial justification for opposing the request.

Monetary sanctions are not the only sanction available to a prevailing party. In more extreme cases, a party can seek issue sanctions, evidence sanctions and even terminating sanctions. These types of sanctions can actually cut off a party's ability to present evidence, be able to argue issues and in the case of a terminating sanction, remove that party's ability to participate in the case.

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