ELKINS TRUMPS SPEED: THE RIGHT TO DISCOVERY UNDER THE DOMESTIC VIOLENCE PROTECTION ACT

Written by Ryan D. Wedeking

Are parties to a request for domestic violence restraining order ("DVRO") under California’s Domestic Violence Prevention Act¹ ("DVPA") entitled to discovery? If so, to what extent?

These questions have been long been debated in the family law bar. The controversy arises out of the tension between a responding party’s qualified right to a hearing on a request for DVRO within 21 days,² and a parties’ general right to discovery,³ which, depending on the type of discovery, may take more than 21 days to complete.⁴

The DVPA is part of the Family Code, whose procedure is governed by the Code of Civil Procedure, unless otherwise provided by rule or statute.⁵ Under the Code of Civil Procedure, parties have a general right to conduct discovery into any unprivileged matter relevant to the subject matter of the action before the court, including any hearing on a motion.⁶ Discovery is a right "…unless statutory or public policy considerations clearly prohibit it."⁷ The right to discovery includes the right to use any form of discovery authorized by the Code of Civil Procedure, with no need to seek leave of court to do so.⁸ Even where a trial court has cause to limit discovery by order, trial courts should "…prefer partial to outright denials of discovery."⁹ Discovery rights are to be liberally construed¹⁰ to further the legislature’s intent that discovery ensure fairness at contested hearings, including by eliminating gamesmanship, deterring perjury, allowing parties to efficiently collect evidence and develop arguments, reduce the number of contested issues, and expedite proceedings.¹¹