New Law Rundown: Family Code §6309 and Discovery in Domestic Violence Cases
Among the new family laws which went into place this year is Family Code §6309. Family Code §6309 limits discovery in domestic violence cases. It changes the landscape of law and custom in domestic violence cases.
First, let’s talk discovery. Discovery is the formal process of exchanging information with the other side in a lawsuit. This can entail:
Interrogatories: written questions that are answered under oath.
Depositions: oral question-and-answer session outside of a courtroom, but still under oath.
Subpoenas for records: a way to obtain documents and records to obtain information, such as financial records, surveillance records, or law enforcement records.
The reason for discovery is the gather information either for the purpose of obtaining evidence or to form a better case evaluation.
The crux of the problem with discovery in domestic violence cases is this: an evidentiary hearing in a Domestic Violence Restraining Order hearing must occur within 21 days from filing. But, almost all discovery mechanisms have notice and response periods that exceed 21 days.
Prior to Family Code §6309, the law was unclear. Some judges leaned towards granting continuances to allow discovery. Other judges stuck with no discovery in Domestic Violence Restraining Order. The tensions are:
Each party should have the information needed for the case but it takes time to obtain information, which can delay resolution.
Parties acting in good faith use discovery to rightfully obtain information needed, but parties acting in bad faith can use discovery as litigation abuse - harassing, intimidating, or controlling them by issuing torrents of discovery, which is also very costly for both parties.
What Family Code §6309 does is this: discovery is not permitted in Domestic Violence Restraining Order matters except as set forth in the new law, and a court can only grant a request for discovery upon a showing of “good cause.” Still, this section does not prevent people from obtaining their own medical records, business records, phone records, or recordings of calls to 911.
In determining whether to permit discovery in a Domestic Violence Restraining Order Proceeding, the court must consider:
The importance and relevance of, and need for, the information sought to be obtained.
The likelihood that the information may be acquired by another permitted discovery method, or may be acquired by other methods including pleadings or examination at the hearing.
The delay in completion of the hearing.
The potential, if any, that the discovery may induce trauma in any person involved in the proceeding.
Whether one or more persons are subject to any restraining or protective orders.
Any other factor that may affect the prompt and fair resolution of the proceeding.
There are serious pros and cons to this new law. On one hand, this new law helps provide clarity for judicial officers and family law attorneys. Where there was more grey area in light of timing issues, there’s now a designated process and specific factors to consider. Also, this new law helps protect victims of litigation abuse, which can be very insidious, expensive, and is all too common.
On the other hand, this new law stands to limit the ability to put on as strong a case as possible, and to gather evidence that either the victim or falsely accused might not readily have. Without formal discovery, the victim’s evidence maybe limited, and the falsely accused’s ability to conduct the necessary discovery to afford themselves an adequate defense may be limited. It can take time to obtain records like text messages, phone records, social media records, and more - and without this evidence, the case may not be as strong as possible.
Emily Rubenstein Law, PC is a full-service divorce and family law firm. We proudly serve Beverly Hills, West Hollywood, West Los Angeles, Santa Monica, Culver City, the South Bay, Glendale, Pasadena, Sherman Oaks, Studio City, Encino and all of Los Angeles County.