Discovery in Mississippi Divorce Trial
Up until 50 years ago or so, trials in Mississippi were uncomplicated affairs. You knew what your client and your witnesses were going to say (hopefully). Knowing what they knew, you could deduce more or less what the other side’s witnesses were going to say at trial.
But you never knew for sure. It was always possible that there was some mysterious witness or a disastrous piece of evidence that you knew nothing about until the middle of trial when it was far too late to do anything about it. The term that lawyers used in those days was trial by ambush.
Throughout the U.S., cases had been tried this way for decades — centuries, actually. But thoughtful people realized that if a trial is supposed to be a reasoned inquiry into the truth, that purpose was ill-served in a trial by ambush.
The thinking went that truth would be more likely to be reached if each side had to disclose to their opponent in advance of trial the evidence that they expected to use at trial. Not only this, but some questioned why litigants should not be required to disclose to each other everything that they knew about the case (even if they weren’t going to use that information at trial).
To make a long story short, Mississippi adopted a set of rules that put some of these ideas into practice. A gross oversimplification of these rules is that: (a) If your opponent asked for information prior to trial and you did not provide it, then you can’t use it at trial; and (b) you have to provide information about the case that your opponent requests. There are several exceptions to both rules, but that’s a very broad overview of discovery.
There are six categories of information-gathering (discovery) that can take place during litigation. These can all occur simultaneously or one after the other (in no particular order). You can use all six, or just one, or none. Your opponent is free to do the same for his information-gathering, without reference to what you’re doing in your information-gathering.
The six categories of information-gathering (discovery) are:
Interrogatories
Requests for Production
Requests for Admissions
Depositions
Records Subpoenas
Rule 8.05 Financial Declarations
Interrogatories
Interrogatories are written questions that you have to answer in writing, under oath. The rules allow your opponent to more or less ask any question he likes, so long as it is relevant to the case, but you have the right to object to improper questions. As a practical matter, there are standard subjects that we see questions about in most divorce cases.
General. Name your trial witnesses, or the people who know something about your case, your expert witnesses and what they will say at trial, and list the exhibits that you will offer into evidence at trial.
Fault Grounds for Divorce. Describe all the misconduct that your spouse committed during the marriage, particularly the misconduct that you say entitles you to a divorce. You will also be asked about your misconduct during the marriage, such as your adultery, drinking, drug use, violence, and so forth. You will be asked to list the witnesses to this misconduct (both yours and your spouse’s). Read here for more about Fault Grounds for Divorce.
Property Division and Alimony. You are likely to be asked to provide much the same information that is described in your Rule 8.05 financial declaration, i.e., to show what your income is and your expenses, to list your assets and debts. These questions are usually broken out by category, e.g., List your real property; List your bank accounts, investment accounts, and retirement accounts; List your insurance policies; etc. Also, list the property that you consider to be your separate property and explain why it is your separate property. You can read here for more about Property Division and about Alimony.
Custody and Visitation. Provide the evidence that supports your claim that you should be awarded custody and the information that you want the chancellor to consider when weighing the Albright Factors. You will be asked to describe your spouse’s shortcomings as a parent, list any restrictions that should be placed on your spouse’s time with the children, and to justify those restrictions. You can read here for more about Custody and about Visitation.
Child Support. List the children’s needs and expenses and describe your ability to meet those needs and expenses. You can read here for more about Child Support.
Interrogatories are sometimes worded in dense legalese, so it can take a bit of study to fully comprehend the question(s) being asked. They are difficult to write and even more difficult to answer, but here are a few ideas to keep in mind:
First, answering interrogatories is about disclosure. Generally speaking, anything that you want to talk about at trial needs to appear in your answer to the interrogatory. So if you are asked about your husband’s drinking and your answer doesn’t mention his DUIs, the chancellor might not let you talk about them at trial because you didn’t disclose them in your interrogatory answer.
Second, you can supplement your answer later. You’re obligated to give the best answer that you can when you submit your original answer. But it sometimes happens during the course of litigation that you realize that your answer isn’t accurate, or that it was accurate when you gave it, but it isn’t accurate now. That’s fine, as long as you promptly supplement your answer with the accurate information.
Third, you don’t necessarily have to answer every question. There are some questions that are legally objectionable. For example, you generally do not have to disclose the substance of your communications with your attorney or with your priest. Your lawyer will know which questions you have to answer and which you can object to. You don’t get to object to a question just because you don’t like it.
Fourth, there’s a limit to the number of questions that you can be required to answer. Your lawyer can explain how this limit works. It’s tricky.
Fifth, one benefit of answering interrogatories is that it forces you to think through your case. For example, it’s one thing to know that your husband is an alcoholic, but how exactly do you intend to prove it? What are the incidents that you can relate to the chancellor? You don’t want the first time that you think about these issues to be when you’re sitting on the witness stand. Answering interrogatories is a chore, but it should sharpen your focus on what you can prove at trial and how you’re going to do it.
Unless your opponent served interrogatories on you at the very beginning of the case, you’re supposed to serve your written responses (answers and objections) within 30 days. That’s not much time. There’s an unfortunate tendency among many litigants to procrastinate on this project; don’t be that guy. The better job you do in responding to interrogatories, the better you will be prepared for trial.
Requests for Production
Just as your opponent is allowed to ask you written questions, he is also allowed to ask you to produce documents and other materials that are relevant to the case. Although the rules are quite liberal as to what a litigant can ask for, you have the right to object to requests that are beyond the pale. Your lawyer can advise you on which requests you can object to and which you will have to comply with.
If you were asked to produce something and you didn’t produce it, you can expect your opponent to object if you try to use it at trial. For example, if you were asked to produce surveillance videos of your opponent, and you didn’t produce any, you can expect your opponent to object at trial when you try to show surveillance videos to the chancellor.
There are some requests that we see repeatedly. What we’re listing below isn’t even close to all of the things that your opponent could ask for. These are just some of the requests that we’re used to seeing in divorce litigation. Depending on your situation, some of these requests might be objectionable.
General. Your trial exhibits, your Rule 8.05 financial declaration, reports of your expert witnesses.
Fault Grounds for Divorce. Reports and videos from surveillance by a private investigator, cell phone and digital records (think records of illicit email, texts, and chats), credit card statements, medical records (think records proving violence, cruelty).
Property Division and Alimony. Tax returns; W-2s, 1099s, K-1s; deeds, appraisals (e.g., appraisals of real property; vehicles and other personal property, and of business interests); mortgages and mortgage statements, closing statements for the purchase/sale of real property; vehicle titles, bills of sale for the purchase/sale of vehicles; statements of account for checking, savings, investment, retirement, and other financial accounts; life insurance policies and riders (e.g., contents rider on homeowner’s insurance); statements for credit cards and other debts.
Child Custody and Visitation. School records, including attendance, discipline, and grades; day care and after-school care records; child’s medical records; texts and emails between the parents and their surrogates; photos and videos; calendars or other materials that keep track of events.
Child Support. Tax returns, W-2s, 1099s; statements of account for checking, savings, investment, retirement, and other financial accounts; statements for credit cards; statements and receipts showing the child’s expenses (e.g., health insurance premiums, medical expenses, extracurricular activities, etc.).
Much of what we wrote about responding to interrogatories is applicable here. It’s not unusual for interrogatories and requests for production to be served in the same document. Responding to requests for production is an unwelcome chore, but resist the impulse to procrastinate. Generally, your responses are due within 30 days.
Your lawyer can guide you on the requests that you can object to and those you’ll have to comply with. For example, you are not required to create something that does not already exist, such as a report, chart, or schedule that your opponent asks you to make. But if it does exist, it’s subject to request.
Also, you have no obligation to produce materials that someone else has if you don’t have the authority to demand production. For example, you can be asked to produce your tax records that are kept by your CPA because you have the authority to tell your CPA to give you your tax records. But you have no obligation to produce your CPA’s computers because you don’t have the authority to tell your CPA to give you his computers.
The volume of paper that requests for production can generate can be massive. We’ve seen more than 100,000 pages produced in some cases. From time to time, a litigant will produce the records in a disorganized mess, like a shuffled deck of cards. The rules prohibit this.
Requests for Admissions
These are difficult to explain, so an example might better illustrate what a Request for Admission is and how it works. Suppose that a wife serves her husband with a “Request for Admission,” which states that he is required to admit or deny the truth of each of the following statements:
1. Admit that on January 30, 2020, you went to the Big Money Casino in Biloxi, Mississippi.
2. Admit that on January 30, 2020, you went to the Big Money Casino in Biloxi, Mississippi, with Trixie Jones.
3. Admit that Trixie Jones was employed as your secretary throughout the months of January through April, 2020.
4. Admit that you paid $189 for a room at the Big Money Casino in Biloxi, Mississippi, on the night of January 30–31, 2020.
5. Admit that you used your Acme credit card number *6789 to pay for a room at the Big Money Casino in Biloxi, Mississippi, on the night of January 30–31, 2020.
6. Admit that Trixie Jones spent the night of January 30–31, 2020, with you in the room that you paid for at the Big Money Casino in Biloxi, Mississippi.
7. Admit that on February 6, 2020, you drove from Jackson, Mississippi, to Nashville, Tennessee.
8. Admit that on February 6, 2020, Trixie Jones accompanied you ...
... and on and on. Eventually, the last item reads
45. Admit that you had sexual relations with Trixie Jones at least once during the time period beginning on January 1, 2020, and ending on April 30, 2020.
Let’s assume that all of the statements are true.
What’s the husband to do? The Rules require him to either admit or deny the truth of each statement, much as he if he were on the witness stand being cross-examined. From the wording and the presentation of the requests, it’s a fair assumption that the wife can prove the statements whether the husband admits them or not.
The Rules provide that if the husband admits a statement, he cannot withdraw his admission without the chancellor’s permission. If the husband denies the statement, the wife is free to prove the statements’ truth, which will make the husband look not only like an adulterer, but a liar as well. And if the husband decides to not respond at all to the requests for admissions, the law deems the requests as admitted.
In the courtroom, litigants love to be evasive about unpleasant truths. But the Rules say that litigants are required to respond to the requests as they are worded. The husband in our example above would not be able to use a slippery response like, “It is true that I sometimes traveled out of town and paid for hotel rooms with my credit card.”
A series of tightly worded requests for admissions, like a cross-examination, can drive the opponent into a corner where he has no choice but to admit the truth or else tell a flat-out lie. If you can prove that it’s a lie, the result can devastate the opponent’s credibility with the chancellor.
A completely different use of the request for admission is to save time and expense. For example, a party can be asked to admit that records are authentic, or that documents are admissible into evidence, or that a photograph is an accurate depiction, or other mundane facts that are not in genuine dispute but still need to be established on the record.
The Rules provide a strong disincentive to procrastinate in responding to requests for admissions. Failure to respond within 30 days will result in the request being “deemed admitted.” To withdraw the “deemed admission,” you must seek the chancellor’s permission, which might or might not be granted. If your deemed admission is not withdrawn, you’re not allowed to dispute the admission at trial. This can be crippling. (An exception to this rule is that chancellors will not award custody solely on the basis of deemed admissions.)
Depositions
Thus far we have discussed written discovery, consisting of interrogatories, requests for production, and requests for admissions. By contrast, depositions are conducted in-person, face to face. Anyone who might be called as a witness is subject to being deposed. But in many divorce cases, the only witnesses actually deposed are the husband and wife.
We have written a separate Ultimate Guide to Depositions you can read.
Records Subpoenas
The Rules allow each party to issue subpoenas to third parties for production of records or other materials described in the body of the subpoena. For example, the following records are commonly sought:
Cellular telephone records
Credit card statements
Statements for checking, savings, investment, and retirement accounts
Records kept by CPAs, such as tax returns
Payroll and other employment records
Closing statements for purchase/sale of real property
School records, including attendance, discipline, and grades
Daycare and after-school care records
Medical records
Law enforcement records
The subpoena can be accompanied by a demand that the subpoenaed person attend a deposition or trial.
It’s not unusual for a litigant to seek the same records via subpoena and via a request for production. For example, a wife might serve a request for production on the husband to produce his checking account statements, and at the same time serve a subpoena on the husband’s bank for the exact same checking account statements. The Rules allow a litigant to use different discovery methods to obtain the same information.
You can object by filing a motion to quash (not squash) the subpoena. But you will have to show the chancellor that you have a good reason why the subpoena should be quashed.
Similarly, the person or entity who is subpoenaed can file a motion to quash the subpoena, but they likewise must prove to the chancellor that there’s a good reason for the motion.
Otherwise, the subpoenaed person or entity is obligated to produce the subpoenaed materials within about two weeks after receiving the subpoena.
