Learn About Obtaining Information For a Domestic Violence Case from the Adverse Party

As of January 1, 2024, the Civil Discovery Act does not apply to matters under the Domestic Violence Prevention Act (DVPA) absent a good cause showing.

INTRODUCTION: The applicability of the Civil Discovery Act to DVPA matters was a point of contention. In cases of alleged Domestic Violence some litigants would seek discovery under the California Code of Civil Procedure.  The new law states litigants cannot use discovery unless the satisfy the judge that it is necessary.

WHAT IS DISCOVERY?

You use discovery to get information or evidence from the other side in a California civil lawsuit including family law cases like divorce, custody and parentage cases,  that will help you make your case. In order to get the information you need, you must make a request using a specific procedure and written format, within a specific timeframe.

You use different types of discovery requests to get different kinds of information:

• To ask the other side to answer a set of questions, you can use Interrogatories
• To ask the other side to admit that certain facts are true or certain items are authentic, you can use Request for Admission
• To ask the other side to produce documents or permit inspection of physical evidence, you can use Request for Production

NEW LAW: Here are four important points about the new law:

Discovery in DVPA matters requires a showing of good cause (FC 6309(c)(1)). The statute outlines six considerations, including obvious factors such as the relevance of the materials sought and less apparent ones like the potential trauma caused to the litigants. (This is found in § 6309(d)).

The request for a good cause finding may be presented in writing or orally during the hearing (Id. at § 6309(c)(2)).

If the court continues the hearing without taking evidence, it must extend the orders but retains the discretion to modify them (This is found in  § 6309(e)(1)(A) and (B)). However, if the court has commenced the hearing (i.e., taken evidence), it can continue the hearing without an obligatory extension of the orders. (Id. at § 6309(e)(2); see Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725, stating, “It is a well-recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.”).

Discovery is limited to the least obtrusive means and the minimal number of requests necessary.  (This rule is found in § 6309(f).)

COMMENTARY: The decision to grant discovery is closely linked to the decision to grant a continuance, as the latter is often necessary for conducting discovery. Be prepared to argue both issues – demonstrating good cause for discovery and for a continuance. A key factor to consider is the presence or absence of prejudice. For instance, if limited monitored visitation with the child was granted, delay may prejudice the respondent. If only conduct orders were granted, there is a lesser showing of prejudice. If the court commences the hearing, then continues it for discovery and quashes the orders, it should adhere to Family Code § 6340(b)’s mandate, requiring the court to explain its reasons in writing or on the record for denying an order.