New Domestic Violence Restraining Order Discovery Law

Beginning January 1, 2024, Senate Bill 741 became law in Family Code § 6309.  This new provision clarifies the otherwise unclear area of whether limited civil discovery is permitted prior to or as part of resolution of a domestic violence restraining order (DVRO).

Section 6309(a) provides: “A party may make an oral or written request for discovery to the court at an evidentiary hearing pursuant to this part.”

As the reader of this article may be aware, no code section otherwise addresses whether limited civil discovery is permitted in the context of a domestic violence restraining order.  However, many attorneys and judges explain that it is impliedly permitted because the Discovery Act plaining applies to Family Code Proceedings (Family Code § 210).  Moreover, interrogatories and depositions are common in marital dissolution and parentage cases.  Therefore, the Discovery Act must apply to DVRO proceedings.

On the other hand, the evidentiary hearing in a DVRO must take place (within limited exceptions) within 21 days from filing (Family Code § 242).  However, almost all the discovery methods in the Discovery Act have notice and response periods that exceed 21 days.  For example, even a deposition cannot be taken under the Discovery Act because a notice of deposition may not be served until 20 days after service of the summons (California Code of Civil Procedure § 2025.210(b)) and so even if the deposition is set ten days later, it would still be nine days after the evidentiary hearing on the DVRO.  So, some would say the legislative intent is not to have the Discovery Act apply to DVRO proceedings.

Moreover, in DVRO proceedings in particular, judges must be aware that one party could use discovery to cause more emotional abuse or harassment of the other party out of spite or retaliation.  Therefore, delaying the evidentiary hearing in a DVRO proceedings to allow discovery may only exacerbate the fundamental harassment issue that the DVRO was filed to prevent.  It may also endanger the victim, or the one seeking the DVRO.

Regardless, some discovery may seem required in certain DVRO cases, which we believe is why Family Code § 6309 was enacted.  For example, a petitioner may claim that Respondent has undertaken a campaign of harassment by texts, emails or voicemails as domestic violence.  Petitioner may not include copies of any of the texts, emails or voicemails, so Respondent should have a right to demand that Petitioner show such harassment to prepare a defense because perhaps the content of such texts, emails or voicemails was to discuss payment of household expenses, transportation of children, etc., or otherwise legitimate family matters.

Therefore, Family Code § 6309 does allow limited discovery.  The key to understanding § 6309 therefore is how to request that the judge permit such discovery without harassment of the other party.

As quoted at the outset of this article, § 6309 permits “an oral or written request for discovery” in the court at an evidentiary hearing.  We think making both an oral and a written request would be prudent.

The oral request can simply be stated in court to the judge, perhaps as follows: “Your honor, Petitioner alleges that I have engaged in a campaign of harassment against her by a series of text messages and emails and voicemails.  I deny doing so.  Under Family Code § 6309, I therefore request to see such text messages and emails and listen to the voicemails she describes so I can prepare a defense.  I therefore have prepared a very short request for production of documents that is narrowly tailored and designed not to be burdensome.  I have a copy to serve Petitioner and show the Court.  I am aware that a delay in the hearing on the DVRO is an issue, so I request that production of such evidence be no later than ten days from today.  I would like to hand this to the bailiff to give to the Petitioner at this time.”  

We suggest no more than five requests for production so that the requests are not regarded as harassment.

If one is representing Petitioner, one should anticipate such a request and either have all such texts, emails and voicemails copied in advance so that such a request can be met, perhaps even in court when it is made to preserve the DVRO hearing for the same day. 

 

If one is requesting a deposition under § 6309, one would be prudent to suggest a discovery referee attend the deposition to prevent harassment of the witness or party.  One could, alternatively, serve a series of interrogatories, as long as the number of interrogatories is minimal (we suggest no more than ten), again to allay the judge’s concern for discovery being used to harass or annoy the other party.  We suggest the party requesting to serve such interrogatories prepare them in advance and have then for the judge to review prior to having the bailiff hand them to the other party.  The response should be ordered within a shortened time to prevent undue delay in the DVRO hearing.

This article would not be possible without reference to an article, “A New DVRO Law Allows Limited Civil Discovery But With Careful Checks and Balances,” written by Judge Lawrence P. Riff and appearing in the January 10, 2024 Daily Journal on page 5.