New Litigation Abuse Protections for Victims of Domestic Violence

Recognizing that upon entering the family or civil court system, survivors of domestic violence often face litigation abuse when seeking protection from the court, the Legislature enacted SB 741 with the intention of curbing such abuse. Litigation abuse is defined in new Family Code Section 6309 as “the use of legal or bureaucratic procedures by abusive partners to continue to attack, harass, intimidate, coercively control, or maintain contact with their former partners through the litigation system by exerting power over them, forcing them to have contact, financially burdening them with excessive discovery and litigation, degrading and insulting them in legal papers, unduly delaying the court process and final resolution of important issues, or dissuading them from pursuing legal protection.”

In light of the demonstrated consequences of litigation abuse to domestic violence survivors, most notably in the form of economic hardship and further psychological harm, discovery pursuant to the Civil Discovery Act is now permitted only upon a request made to the court based on a showing of good cause for the discovery by the requesting party and subject to specified considerations by the court as set forth in Family Code §6309, including, but not limited to:
• Importance and relevance of a or need for the information.
• The likelihood that the information may be acquired by other methods.
• The delay in completion of the hearing, if discovery is permitted.
• The potential that the discovery may induce trauma in the other party.
• Whether one or more persons are subject to restraining or protective orders.
• Any other fact that may affect the prompt and fair resolution of the proceeding.

As a result, this legislation provides the court with an additional tool with which to deter litigation abuse in domestic violence cases by only allowing necessary discovery and eliminating discovery that may induce trauma in the survivor.