Q: Can a family attorney request pending criminal discovery, to use in a family law trial? Nevada

A: Normally yes, a family attorney can requesting pending criminal discovery. Criminal discovery is not protected from discovery in family law cases.

If there is some reason that a party should not receive discovery, then you need to request a protective order. Or, if a subpoena has already been issued, then the party should file an objection to the subpoena and send a copy of the objection to the party that has been served the subpoena along with a request that the information not be disclosed until there the court rules on the objection. The objection will then be ruled upon by the discovery commissioner.

I have occasionally seen discovery in family law cases limited in order to protect a criminal defendant's rights. In most instances, the discovery is merely postponed until after the criminal case is finished - which may in effect put an end to the discovery, as most parties in family law cases aren't willing to wait. But on occasion entire family law cases are put on hold for years.

In all honesty, if you are intending to do something like this, then you need to hire an attorney. Discovery is a very technical field, and you will need to explain how release of the information will violate the father's rights as a criminal defendant. Its possible the attorney in the criminal law case can ask for a protective order in the criminal case, which if received would be a straightforward way to block discovery in the family law case. But there is the timing issue, as it will probably take longer to get a ruling on the protective order in the criminal case than the it takes to get documents through a subpoena. So the objection would then request time to seek relief from the criminal court... it gets very complicated very quickly.

In Nevada, an objecting party has only seven days to object to a subpoena - and that is calendar days, not business days. So you and your attorney(s) will need to act quickly.

A: In Nevada, whether a family law attorney can request pending criminal discovery for use in a family law trial depends on several factors, and there are limitations and protections surrounding criminal discovery that may apply. Here's a breakdown:

1. Family Law and Criminal Law Separation:

Family law courts and criminal law courts are generally separate, and criminal discovery typically cannot be directly introduced in family law cases unless it is relevant to issues such as custody or visitation. Criminal cases are usually treated with a higher degree of confidentiality, and certain types of information are protected.

2. Subpoenaing Criminal Discovery:

A subpoena for criminal discovery in the family law context could potentially be issued, but it requires approval by the family law court. The family law attorney must show a compelling reason for the discovery to be shared.

Relevance is a critical factor: The family law attorney will need to demonstrate that the criminal case’s discovery is relevant to the issues in the family law trial, such as a parent’s fitness to have custody or visitation rights.

3. Confidentiality of Criminal Discovery:

Criminal discovery often includes sensitive materials such as witness statements, police reports, and other confidential information. This discovery is typically protected in order to preserve the integrity of the criminal trial.

If a subpoena for criminal discovery is issued in a family law case, the family law judge may conduct a balancing test to determine whether the need for the information outweighs the confidentiality protections.

4. Step-mom's Role as a Potential Witness:

If the stepmom is considered a potential witness in the criminal trial, she would not be permitted to see the criminal discovery. This restriction is in place to prevent the discovery from influencing the stepmom's testimony in the criminal case. Witnesses in criminal cases must remain impartial and cannot have access to the evidence beforehand, as it could affect the outcome of the criminal proceedings.

5. Bio Mom's Lawyer Requesting the Subpoena:

Bio mom’s attorney can indeed request a subpoena for criminal discovery if they believe it’s relevant to the custody or visitation issues. However, the family law court will likely scrutinize whether the discovery is directly related to the best interests of the children or the fitness of the father to have visitation.

The subpoenaed materials will likely be reviewed by the family law court to determine if they are admissible and relevant for the purposes of the family law trial.

Conclusion:

In short, yes, a family law attorney can request pending criminal discovery for use in a family law trial if it is deemed relevant to the case. However, this request is subject to court approval, and the family law court will consider issues like confidentiality, witness protections, and the relevance of the information. The stepmom’s access to the discovery is prohibited due to her status as a potential witness in the criminal case, which is meant to preserve the integrity of the criminal proceedings.

To navigate this complex issue, it is important to consult with an attorney experienced in both family law and criminal law matters, as they can guide the process and help determine the best course of action.