Discovery in an Order of Protection (OP) Case

In a recent Tennessee Court of Appeals decision, Luker v. Luker, M2018-00138-COA-R3-CV (Tenn. Ct. App.2018), the Court addressed whether a respondent in an Order of Protection case had a right to conduct discovery in order to prepare for the hearing.  The typical Order of Protection case is set for a hearing within fifteen (15) days of the respondent being served.  Once served, typically an ex parte order of protection is issued, which many believed was intended to protect the petitioner from harm.

In Luker, the Court of Appeals stated, much differently, that the requirement of a hearing within 15 days was intended to protect the respondent from frivolous ex parte orders of protection and not intended for the protection of the petitioner.  The Court also stated that it saw no barrier to a respondent requesting that the hearing be put for a definite period of time in order to request reasonable discovery as long as the ex parte order remained in place.  The catch in the Court’s opinion is that discovery would be granted at the trial court’s discretion, meaning that the ability to conduct discovery in an order of protection case would be decided on a case-by-case and court-by-court basis.

This opinion is extremely important because of the nature of order of protection cases.  Respondent’s get served with an order and have a court date set in a matter of days.  The petitions for an order of protection are also notoriously vague and tend not to provide dates of incidents or name potential witnesses.  Discovery in such cases allows a respondent to request more detailed information in the allegations so that they may properly develop a defense to each specific claim.

 

Michael A. Wrenn is an Associate Attorney at Freeman and Fuson