If you are involved in a Wisconsin divorce, paternity action, or a dispute about legal custody, physical placement and support of a minor child, you have probably heard about the discovery process. A party to a Wisconsin family action, such as a divorce, may choose to undertake formal discovery, to find out more information about the other party, so that the requesting party can be fully informed and better prepared for a settlement negotiation or a trial. This article will explain the discovery process and discuss how discovery can work in a divorce, paternity, child custody and placement or support action, in Wisconsin.
The function of discovery is exactly what it sounds like; it allows a party to ask questions of the other party and to learn more about issues related to the action. Under Wisconsin Statutes Chapter 804, the topics open to this process are very broad. The only restriction, in terms of what a party can ask for, is that it must be reasonably calculated to lead to the discovery of admissible evidence. This means that anything relevant to the action may be requested or asked about, regardless of whether the rules of evidence would specifically allow for its introduction, at trial. Common discoverable topics include a party’s income, assets and debts, as well as his or her earning, educational and employment history.
The process of discovery, in Wisconsin, is guided by statute. Discovery may be commenced at any point in an action, and parties may send multiple sets of discovery requests to one another, before an action is concluded. Discovery requests must be answered within 30 days. If the receiving party fails to respond timely, the party sending the requests may file a Motion to Compel Discovery with the Court, and may ask for sanctions that include payment of the requesting party’s attorney fees. If you receive discovery requests, it is important to pay attention to and meet this deadline. Discovery responses must be signed by the responder and notarized.
Discovery can take several forms, and usually a complete set of written discovery requests encompasses at lease several of these.
- One form discovery can take is that of “interrogatories,” or formal questions. The responding party then has a duty to answer these questions as accurately, as with as much specificity, as possible. These questions could be only one part each, or they may consist of many sub-parts. For example, a common interrogatory in a divorce would be to ask the other party to state the name of a current employer, along with the business’ address, when employment commenced, the party’s job title there, an overview of the party’s job duties, and how frequently the party is paid.
- Another common element of discovery is the “request for production of documents.” This means that the requester may ask for copies of any documents relevant to the action. Common documents requested include bank statements, credit card statements, retirement account statements, a deed to a house or an educational transcript. If the responding party does not have something in his or her possession, she or he must do what is reasonably necessary to obtain it, or sign an authorization such that the requesting party may access or obtain the document. These requests allow the receiving party to have actual documentation of information reported by the other party, so that they are not “taking someone’s word for it.” A party may also request to inspect an item, document, or a physical place (such as a home, or land).
- A “request for admissions” is another component of a set of discovery requests. This section would ask the receiving party to either admit or deny a series of statements. For example, “You were employed by Joe’s Garage in 2013.” The tricky aspect of this kind of discovery is that, if the responding party fails to answer the requests by the 30-day deadline, the statements are deemed admissions. This form of discovery is designed to narrow down the number of issues in dispute.
- “Depositions,” or sworn oral statements, are also a form of discovery. These are taken with a court reporter present, and a written transcript will be generated. This transcript could then be used at trial, to compare with the same witness’ testimony. If the deposed party’s statements conflict with what they say at trial, his or her credibility may be called into question.
Discovery can be very useful, in that it can result in the acquisition of information not otherwise accessible to a party. However, drafting and responding to discovery requests, or engaging in depositions, is very time-consuming, and therefore very expensive. Discovery can also escalate conflict, if not undertaken in good faith. Further, discovery takes time, and this can have an impact on how long it will take to resolve your case. It is important to consult with a knowledgeable and experienced family attorney, who can guide you through this process, talk to you about your options and discuss what you may be able to expect, given your unique circumstances.