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Is Your Life an Open Book?

Protective Orders in Civil Discovery

In family law cases, such as alimony, the division of marital property or child custody and support, your life will often become an open book. Courts discourage trial by ambush. Instead, the courts require people to share significant personal information with each other, the attorneys and the judge. The other party typically has access to your credit card statements, bank records, deeds, mortgage and debt records, pay statements and documentation of rents or any other income you have, retirement and investment records, and tax returns in most cases. This applies both to marital property and separate property.

However, there are times when the court can limit access based on court rules concerning what each person is entitled to get. Civil discovery is a process that allows each of the parties in a lawsuit to ask written questions called Interrogatories to the other party, who must then answer the questions in writing under oath. Civil discovery also includes something called a “Request for Production of Documents and Things.” The law requires the parties to exchange documents requested by the attorneys. A request for “things” might be a request to access a mobile device with videos stored on it. The responses to such a request are also made under oath, including any explanation as to why the item or document is not available or clarification that a request is not applicable.

What Does a Protective Order Do?

When the judge rules on a motion for a protective order, he or she reviews the discovery requests to decide whether they are necessary or reasonable. If a motion for a protective order is granted by the judge, it “protects” you from having to produce documents/things or answer certain questions. Otherwise, refusal to respond to discovery requests as required without a court order excusing you means that you risk paying the other party’s attorney’s fees, among other penalties. The judge can decide to narrow the scope of what the other person is seeking. Instead of providing five years of bank statements, the judge might decide only three years of records must be produced.

When Protective Orders Are Used?

A judge might enter a protective order when discovery requests include confidential records like medical records or computer passwords. If parties are arguing about the income and profitability of a business for determining support, or the value of the business as a marital asset for purposes of a marital property case, a protective order might be appropriate to protect other co-owners of a business or the business itself. It can prevent confidential information and trade secrets of the business from being shared with anyone except the other party in the lawsuit, the attorneys and any other appropriate individuals. Sometimes the information requested in discovery is difficult or costly to gather. A protective order can address who pays the cost and even the manner in which the information will be obtained, especially when seeking electronically stored information.






Laws change. This article is current as of 2016.

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