Information Protected from Discovery

Civil cases have many required steps, such as filing the petition, service, filing a response, and properly noticing the other party of any hearings, just to name a few.  Family law is no exception to these steps and requirements.  Discovery is a step that is taken in most divorce or custody cases, especially those that are highly contested.  During discovery, you and your attorney can request disclosure of certain information and production of certain documents.  There is a wide range of information available through discovery, including anything that is reasonably designed to lead to information admissible at trial.  Although discovery makes a wide variety of information available to the other side, there are some types of information that will be protected from disclosure in discovery.

The most straightforward type of information that is protected during discovery in a divorce or child custody case are conversations or information covered by attorney-client privilege.  Any conversation had solely between you and your attorney, including the times, dates, and contents of those communications, are protected from discovery.  This is true regardless of whether the conversation was had in person, over email, or on the phone.  Be aware, however, that if another person was present during the conversation, it could be that the conversation will not be protected by attorney-client privilege.

Another type of information protected from discovery is when the discovery request is overly burdensome.  An unduly burdensome request would be one that places an unreasonable financial or logistical burden on the producing party.  For example, if the request demands that you produce forty-five years’ worth of banking information when you have only been married for three years, this is likely unduly burdensome, as it will be costly and difficult to provide so much information, and much of the information produced is not likely to be particularly relevant.

Finally, another type of information that is protected from discovery is information that is not in your control. This may sound obvious, but depending on how the request is phrased, it may not be as evident.  For example, if the request asks for any conversation had by your paramour regarding your affair, although that evidence is relevant, it is not within your power to produce any information or evidence in the possession and ownership of your friend or paramour.

Let us help you understand the discovery process.  Call today at 651-413-9568 for a consultation.