One of the more well known “negotiation” strategies in divorce that I have dealt with recently is the litigant who is intent on pressuring/forcing the other party into an inequitable surrender by burying the other party in paperwork, letters, discovery requests, deficiencies, motions, subpoenas, and the like. This strategy is often tied to the party with greater financial resources to litigate, and is, quite frankly, both unreasonable and – from a non-legal perspective, very frustrating/maddening due to the potential time and cost involved.
For instance, I was recently before the Early Setlement Panel on a case that was close to settling when I learned for the first time of assets that the other party had failed to previously disclose in no less than two prior Case Information Statements (a document signed under oath by a litigant that is supposed to contain all existing assets and liabilities), and discovery responses (also made under oath). As such assets were each potentially worth tens of thousands of dollars, the revelation threw a monkey wrench into settlement discussions, and further inquiry was required. When I indicated to my adversary that my client was likely going to seek distribution of those previously unknown assets, however, my adversary responded that his client was going to counter by simply issuing entirely new sets of discovery requests seeking what could only be deemed an overly burdensome amount of additional discovery where there were no issues with my client’s prior response.
The message was clear – in no way was my client going to obtain his rightful distribution of those previously hidden assets without a fight, whether such additional discovery requests would be permitted or not. Unfortunately, it is this type of “strategy” that often prevents a settlement, furthers the litigation, increases counsel fees, and drags a matter out for months longer. Thus, when I have previously indicated that a divorce often takes as long as the parties allow it to take, this is the perfect example of what I mean.
While not every matter requires or necessitates full blown discovery, or for a letter to address every issue under the sun, some litigants will seek to send such correspondence or discovery (documents, answers to various financial and/or custody-related questions, and the like) simply to force the other party to give in. With each request or letter, a response is often required and, with that response, a cost is involved. As responding to discovery requests is often costly in terms of counsel fees, and quite time consuming, parties generally hate doing it. Then, after an initial response is provided, the pressuring party may send a so-called “deficiency” letter addressing alleged problems with the discovery responses. While a deficiency letter addressing legitimate deficiencies is entirely proper and often critical, on the other hand a list of alleged deficiencies may be complete nonsense designed to further pressure a party to stop litigating. A second deficiency letter and more may follow. Then subpoenas may be sent even if there were only limited financial records at issue. Essentially, the plot for a bottomless rabbit hole of paper is clear, and the costs keep rising.
The same can be said for other discovery techniques, such as depositions. Not every case involves depositions, and oftentimes they are an extremely important tool to obtaining information from a party under oath in response to a series of questions. A deposition, however, is often time consuming to prepare for and take or defend and, as a result, is typically costly. Recently, I had an adversary indicate to the Court that the only reason he had to take my client’s deposition was because I planned on taking his client’s deposition. As simple as that – completely to send a message to my client that the price to procure information from his former spouse under oath was going to be him having to sit under oath for several hours as well, at a substantial cost.
So what is the take away here? Well, there are only so many ways that a party can be stopped from burying another party in paper and/or other forms of discovery. Discovery rules are quite broad and extremely flexible in family law matters – i.e., with great equity comes great flexibility. Not only will recognizing this strategy provide you with a better indication as to how you may have to fend off the other spouse in rightfully litigating your case, but it may also become crucial when noting how unreasonable the other party was when you submit your application for counsel fees.