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Examination for Discovery – What is it?

The discovery process is an essential part of your lawsuit. Our judicial system is built on the premise that all parties should know the case that must be met before going to trial. Discovery allows you to gather information about the other party’s case and gather evidence to build your own. There are three main types of discovery: documentary, physical, and examination for discovery.

Examination for discovery can take the form of oral or written examination, but the examining party cannot subject a witness to both without leave of the court (Rule 31.02(1)). During examination, the parties’ representatives may ask the opposing side to provide the basis on which they rely to support their case.

Who can be examined? A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once, only with leave of the court (Rule 31.03(1)).

What about a corporation or partnership, can they be examined? Yes. Parties can examine any officer, director, or employee of a corporation under Rule 31.03(2), and parties can examine any person who was or is alleged to have been a partner of a partnership or a sole proprietor at a material time under Rule 31.03(3).

What is the scope of examination? A person examined for discovery shall answer to the best of their knowledge, information and belief, any proper question relevant to any matter in issue in the action and no question may be objected to on the ground that: (Rule 31.06(1))

  1. The information sought is evidence;
  2. The question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; OR
  3. The question constitutes cross-examination on the affidavit of the documents of the party being examined.

Are there continuing disclosure obligations? Yes. There is a duty to correct answers. Where a person has been examined for discovery and subsequently finds that the answer to a question on the examination was incorrect or incomplete when made, or is no longer correct and complete, the party must provide the information in writing to every other party (rule 31.09(1)).

What is the consequence of failure to correct answers? Where a party has failed to comply with continuous disclosure obligations and the information subsequently discovered is (a) favourable to the party’s case, the party may not introduce the information at trial, except with leave of the trial judge, or (b) not favourable to the party’s case, the court may make such order as is just (Rule 31.09(3)).

Do you, or someone you know, need legal representation? We are here to help. Please contact lawyer Judith Hull.

This post was written by Lawyer Judith Hull and Summer Student Audrey Monchamp.

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