civil-procedure discovery
At what times during the litigation process is discovery allowed?
<p>My divorce was finalized a couple of years ago. My ex recently filed a Motion for Contempt over some bills that were not paid that I was ordered to pay. These bills were all in her name and the lenders couldn’t discuss anything with me without her written consent. She refused to cooperate with me and the lenders to get these bills taken care of and refused my certified mail when I tried to contact her that way and hasn't sent me any certified letters trying to rectify this.  After I was served with the contempt papers, I filed a Motion to Dismiss (since I honestly tried my best to take care of the bills). Her attorney recently filed Notice of Readiness and requested a court date. In the notice, her attorney stated that “discovery is complete”. I had planned on filing a Request for Production to gather any possible correspondence between my ex and these lenders and between me and her (in hopes that the absence of any correspondence would help build my case). My question is this: since her attorney stated that discovery is complete, does that mean that I no longer have the option of discovery before the trial? Or does that simply mean that they have completed their discovery and I’m still free to explore my own discovery options?</p>

<p>Discovery can proceed at any time before trial/hearing on motion with the courts consent, or more typically during the time set forth in a scheduling order. When a motion for a finding of contempt is filed, it's unlike a regular complaint. You only get a small window to respond and at a minimum, you need to file an appearance and a motion to extend the time necessary to respond if you're not ready. </p>

<p>Depending on what the Plaintiff is asking for by way of disclosure of assets, a scheduling order may have been issued. If they simply are bringing you in to argue that you never paid what you were ordered to pay, without a corresponding disclosure hearing, you need to ask the court for the right to conduct discovery pertaining to your defense. </p>

<p>You say you filed a motion to dismiss (I'm assuming this was a 12(B)(6) motion , as a rule 56 motion for summary judgment would not be proper at this stage; however, neither are <em>really</em> proper unless they failed to give you the necessary documents. The reason is that a motion to dismiss (12(b)(6)is reserved for instances when t<em>he plaintiff fails to state a claim upon which relief can be granted</em> or <em>for improper service</em> (among other jurisdictional issues that don't apply) in response to there motion,  In this case, however, relief <em>can</em> be granted, despite you not agreeing with it for the reasons you stated. It does not appear that you're claiming ineffective service - what you are really seeming to say is that you have a valid defense. I'm not sure what the court would do in that case, except to just ignore it and schedule the hearing. </p>

<p>If it <em>is</em> for improper service, or if it's based on them not giving you a copy of the Motion and Declaration for Contempt, the proposed Order to Show Cause, the Declaration(s), which are often included in a motion (but not always),the Proposed Order on Show Cause, and/or any other documents that your county may require, you should amend your question because that makes this analysis different. </p>

<p>If you filed a motion to dismiss just because you don't think they should be able to bring the motion for contempt because you say she wouldn't cooperate, that is a <strong>defense</strong> not a reason to dismiss. </p>

<p>While you can't make this go away with a motion, you <strong>can</strong> defend your position, and to do that, you seem to be saying you need to conduct discovery. If this has been more than a week or two, a scheduling order should have issued. You don't automatically get the right to discovery in a contempt hearing unless you have an affirmative defense to the motion filed with your answer, and again, you need to specifically ask for this. A You should call the clerk of the court where the original action was filed to see if an order on the motion was issued.  Since you haven't served discovery, and haven't asked for any, it may be too late. That said, judges tend to give wide berth to pro se parties, especially those who are opposing someone who is represented. If you need to conduct discovery in order to mount your defense, I would ask the judge for an emergency hearing, now. You could be heard on this issue within a day or two.</p>

<p>What opposing counsel says to the court, unless it's a joint stipulation, <strong>is not binding on you</strong>. Even if you ask for an emergency hearing, I would respond to to the Plaintiff's motion, calling it Defendant's response to Plaintiff's Motion of Readiness, outline paragraph by paragraph (this means numbered sentences with 2 spaces between), exactly what the facts are and what your defense are.  If you are going to include things that you yourself have noticed or have evidence of, if pertinent to the opposing counsel saying discovery was complete, you need to include an affidavit attesting to those facts. Either way, include the date the motion was served, the date you responded with your motion, the dates pertinent if any pertaining to discovery that arose from a scheduling order if one was issued, date they filed notice, Then, you can tell the court the fact that you have not been served and discovery, nor did you have notice that the period for discovery had even began to run, and (assuming you need to) that you need to conduct discovery in order to present an adequate defense to the motion. </p>

<p><strong>Importantly, you should note that when the Plaintiff's attorney stated to the court that "discovery is complete", you were not consulted and this was not a joint stipulation.</strong></p>

<p>Then, don't wait for a response unless you do ask for the emergency hearing, and it is within just a couple days. I would just serve your interrogatories or RPD's or whatever it is you need to serve, or notice your depositions.</p>

<p>If discovery deadline has passed, file a motions for an extension with the court with your request to are heard. Ask the other attorney to agree, first. He or she probably will. Then it can be a joint request. If they won't agree, als state that in your motion.</p>

<p>If you get the opportunity for discovery, you're going to need to do a 30(b)(6) deposition of the company that refused to let you pay with the order of disposition giving you the ability. That will be your only defense. Emails to her will help, but the fact is, once the court assigns you responsibility to pay the debt, the court order is always enough to let you pay, or enter into negotoiations.</p>

<p>In Michigan, discovery is not allowed in small-claims court or civil-infraction actions. In district court, pre-judgement discovery is not permitted "except by leave of the court or on the stipulation of all parties". <a href="http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/subchapters/Subchapter%202.300%20Discovery.pdf" rel="nofollow" title="MRCP 2.300">MRCP 2.302(A)</a> Where discovery is available, the judge should issue an order setting "the time for completion of discovery". However, it seems that post-judgement discovery is wide open; if I understand Michigan law, and Missouri law is similar, it's perfectly reasonable to use discovery to gather information to enforce a judgement. Using it to gather evidence to defend against a charge of noncompliance with a judgement seems odd, but should similarly be allowed.</p>

<p>In Missouri and at that phase of the trial, discovery might not be the right tool. Another option would be a subpoena. <a href="http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/C0C6FFA99DF4993F86256BA50057DCB8/91948E0FDB70020C86257973005C2464" rel="nofollow" title="Missouri Supreme Court Rulesquot;">rule 58.02</a></p>

<p>A third option is to just show up at trial with your evidence and witnesses. While the overall goals of a divorce proceeding are to divide the marital estate equitably and provide for the best interests of any children, the specific situation you ask about is a contempt proceeding, and for that the relevant inquiry is simply whether the person in question is in contempt or not. The relevant part of the definition of contempt in Missouri, <a href="http://www.moga.mo.gov/mostatutes/stathtml/47600001101.html" rel="nofollow" title="Missouri Revised Statutes 476.110">MRS 476.110</a>, would probably be:</p>

<blockquote>
  <p>(3) Willful disobedience of any process or order lawfully issued or made by it;
   (4) Resistance willfully offered by any person to the lawful order or process of the court; </p>
</blockquote>

<p>A judge will probably not be happy with a litigant who seems to be playing games, for example by asking for discovery where it's not needed. It might be simpler and a better strategy to answer the charge immediately, and also file a cross-motion asking for the other party to be found in contempt. </p>

<p>Lastly, note that I am not a lawyer (and if I were, my comments here would not be intended as legal advice). If your ex has a lawyer currently representing her, that might be even more reason to retain your own lawyer.</p>

<p>I don't know how it works in Missouri, but you're going to need to get discovery re-opened. It seems crucial to me that you understand if you need to ask for this in a motion or if you can ask at the hearing which will likely be scheduled as a result of the motion for contempt. You might be able to settle this by a phone call to the clerk.</p>

<p>So you need to decide if you can defend the contempt motion with the evidence you have, or if you need discovery. If you can defend it, just bring all your evidence to the hearing. Of the hearing is actually more of a scheduling conference, ask for discovery and make time in the schedule to complete it. </p>

<p>You need to check this, but I think the burden for contempt is VERY high.</p>
