As of Jan.1, 2024 a new law came into effect that clarifies existing ambiguity in the law regarding whether a party can engage in discovery in the context of Domestic Violence Restraining Order. Whereas before the answer depended upon what judge you went in front of and in what county, the new answer is a qualified yes.
In my experience, the situation absolutely needed clarification and in my opinion, as I wrote years ago, the court should grant discovery in DVRO’s as a matter of right for the sake of everyone involved. The counterargument to that in terms of public policy is that it is desirable for such matters to not drag out and be expedited. Victims of DV, according to this line of thinking, do not need this hanging over their head unresolved and should not be subject to discovery abuse, even though there is likely already a TRO in place to protect the protected party as much as a permanent DVRO would.
The problem with that line of thinking is that courts ALREADY HAVE BROAD DISCRETION to deny or permit discovery on almost every issue, and you cannot even realistically appeal such orders. The court already had the power, prior to FC6309, to say “no”.
While the legislature clearly envisions victims of DV facing the kind of abuse often engaged in by attorneys in family law cases, that has not been my experience. The only discovery I have ever seen in a DVRO case was a deposition, which is a completely reasonable measure in almost every way since it informs both sides as to the strengths and weaknesses of their case and tests the truth in a way that should not be first tested at trial. The element of surprise is a very useful tool when dealing with people who are lying. Likewise, a convincing witness can convince an attorney very quickly that a trial is a bad idea.
Given the detailed mission statement found at the beginning of FC6309, it is very clear that the legislature has not considered the possibility that a DVRO itself can be a weapon in hands of an abuser. False accusations of DV are abuse, but it would seem there is not much political capital to be found in pointing that out. The view from the trenches for me is a little different.
Now comes FC6309 which makes my cases in which I represent the abused no easier (for whatever reason, nobody has ever asked for discovery in cases where I represent the abused) but makes cases where I represent the falsely accused that much harder.
Now, according to this statute I have to actually appear at the trial for the first time, and in the middle of the trial ask for a continuance if I reach a place where I need discovery. I would not want to be representing someone facing false allegations in such an instance, I would not want to be the judge in that instance, but I would want to be the moving party since it places all the burden on everyone else, on the fly, in the middle of what is quite possibly a hotly contested trial.
I then have to argue “good cause” for any requests that I bring, after the other side has already had a preview of my potential evidence. Their story can then get better with the telling. I lose any advantage I may have in being able to surprise a witness who may not be telling the whole truth. And the reason for this is because there is a need for the abused to have this matter heard as quickly as possible, using the lowest standard of evidence available to us, which is the preponderance of the evidence.
Then, if there are children in the mix, that party who has achieved a DVRO as quickly possible, with no discovery permitted,using the lowest standard of evidence, then gets to argue that there is a presumption against joint or sole custody in favor of the person who is subject to the DVRO. Family Code 3044 arguably now creates serious due process issues for a party who has children and faces a DVRO where discovery is eliminated or truncated by a Judge’s decision.
While I am glad to see the legislature trying to fix the ambiguity of what discovery to permit, I think it would be have been smarter to provide for very limited discovery as a matter of right, in the form of a single deposition or small document demand. This “show your cards” statute is, in my opinion, a statute too easily abused and not really even that useful to the abused given the way these were already handled, at least in the counties I practice. It solved one problem and created another.
False accusations of domestic violence are a form of domestic violence. When they are taken seriously, they make abused people less safe because they make abused people less likely to be believed by anyone who has seen a DVRO issued against someone they know is innocent. If we are truly interested in protecting abused parties, then we need to think carefully about measuring the balance between a quick decision and a well-informed decision based upon the available facts.
