When Discovery Is Not Forthcoming

What do you do in a divorce case when you propound discovery requests however opposing counsel has not complied? You can simply wait it out and not much will happen. Or, you can bring a motion to compel to bring the issue to the court’s attention. If you take the affirmative step in bringing a motion to compel, the court is going to set some form of timeframe for the respondent to reply. This may be the only thing that can get the respondent moving in the right direction. If you do nothing, the discovery time will close and you will not have an opportunity to obtain that discovery, cross examine that discovery, or otherwise use it to your benefit.

In a recent case, with a trial date soon approaching and a discovery close date not yet occurring, opposing counsel is failing to turn over discovery claiming that they do not have it completed yet. This involves evaluation of a business which should be done very early in the process. Without that discovery, the petitioner has no way of offsetting or attacking the valuation from the other side. If the petitioner simply waits, he will be prejudiced in that the respondent may bring out that information at the last minute without an opportunity to properly examine it.

The lesson here is simple. When you propound discovery, and it is not forthcoming, you need to take the appropriate action and bring a motion to compel. Otherwise, you run the risk of never receiving that discovery and potentially, maybe being accused of malpractice by your client.