Examination for Discovery
(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to prepare for an examination for discovery. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)
We are now ready for one of the more important steps in the lawsuit where each party will prepare and ask questions of the opposite party. Answers are given under oath. This is called the examination for discovery. Please read this guide carefully, to assist you in preparing for your examination and our pre-discovery meeting.
The examination usually takes place at the office of an Official Examiner or reporter, who provides office facilities, reporting services and administers the oath to witnesses. (In some cases, by agreement, the examinations are held in a lawyer's office).
The setting is informal. It is not a courtroom and no judge is present. You and I will sit on one side of the table and the lawyer for the opposite party will sit across from you. Coffee, tea and water are usually available. Smoking is not permitted in the examination room.
A reporter will be present to record the questions asked and your answers by tape recording, stenomask or shorthand. A transcript is prepared later by the reporter. The opposite party will usually not be present in the room while you are being examined and similarly, when I examine the opposite party, you will not normally be present. Both parties are entitled to be present during the examination of the opposite party. If you would like to attend my examination of the opposite party, please let me know. The opposing lawyer will attend with his or her client during the examination by me.
Lawyers for both parties usually agree on the order of examinations when the dates are scheduled. If you have any preferences or scheduling difficulties, please let me know as quickly as possible.
PURPOSE OF DISCOVERY
The examination of you by the opposite partys lawyer has several purposes :
Similarly, I will conduct the examination of the opposite party with these purposes in mind.
PREPARATION FOR DISCOVERY
You and I will meet in my office on the date scheduled. Please tell me at that time if you have any suggestions concerning questions for the opposite party. We will then discuss the areas of questions which I expect the opposing lawyer will ask you on the examination. It is vitally important to be well prepared for this examination.
Re-read the pleadings
I would ask you to read the statement of claim and statement of defence very carefully prior to our pre-discovery meeting. If you do not have copies of these pleadings, please contact Robin McCurrach ((416) 362-4000 Ext. 224) immediately and she will send them to you. If you have any questions concerning these pleadings you should raise them at our meeting.
Re-read the documents
Similarly, it is important that you re-read all of the documents which we have gathered together in order to refresh your memory and refamiliarize yourself with the facts of the case. If, by chance, there should be any further documents which you have not passed along to me, please bring them to our pre-discovery meeting.
Check for all relevant documents
We must disclose all documents which relate to the issues in the action must be made. If you have not already done so, you should personally check all likely places where documents may be located. If you subsequently locate or recall any other potentially relevant documents, please send them to me immediately.
They may not look like documents, but they are documents for discovery purposes
The scope of documents as defined by the rules is wide and includes letters, contracts and other papers. In addition, we must produce any other defined documents such as a sound recordings, videotapes, films, photographs, charts, graphs, maps, plans, surveys, books of account or information recorded or stored by means of any device.
CONDUCT AT THE DISCOVERY
Your examination is principally for the benefit of the opposite party whose lawyer will ask you questions. You are obliged to answer those questions unless I object to any particular question or questions.
The lawyer for the opposite party will try to obtain answers from you which will help the opposite party's case and hurt yours.
Do not be concerned if I am not continuously participating in the examination; there may be no reason to object or interrupt. I do have the right to re-examine or ask further questions when the lawyer for the opponent is finished in order to clarify or enlarge your previous answers as may be necessary.
I would suggest that you keep the following simple guidelines in mind for answering the questions put to you:
You are required on the discovery to provide facts in three categories. The first is actual "knowledge" which means a circumstance about which you personally observed and can testify.
The second category of fact is "information" which is something that someone has told you and you believe to be true. Information of a hear-say type that would be normally contained in a police report, in the statement of a witness to an accident or from employees and co-workers would fall into this category and must be provided.
The final category is "belief" which is a reasonable assumption of facts that you have made based on your knowledge and information. It is something more than a guess. If you are only guessing, then you need not provide this category of fact. The usual way to elicit an answer which covers all such categories is to ask what "knowledge, information or belief" a witness has concerning a certain matter. If you are giving merely your personal knowledge, then there is no need to add any qualification to your answer. However, if you are giving information or belief, you should identify that it is either information or belief so that the lawyer will know that you are not giving evidence which you did not or could not have experienced or observed.
FOLLOW-UP AFTER DISCOVERY
After the examination, I will send you copies of the transcripts of your examination and the opposite party's examination for your comments. For my convenience, I use a standard form called a Transcript Comment Form to organize your comments and I will send copies of this form to you with the transcripts. If there are any errors in the transcript, or there are any answers which are, or at any time, become incomplete or incorrect, please note them on the Transcript Comment Form or advise me. We have a duty under the rules to inform the opposite party of any such incorrect or incomplete answers and provide a correct or complete answer in a timely way prior to trial.
If there are questions which we cannot answer at the examination, we agree or undertake to provide an answer later. Robin McCurrach or I will be in touch with you to obtain the information required to prepare the responses to any questions which we undertook to answer. If the other side does not provide answers to their undertakings promptly after the transcript is available, I will bring a motion to compel them to do so.
Any questions? If you have any questions about discovery, please contact us at:
W. Bruce Drake Hooey Remus Telephone: (416) 362-2051 Facsimile: (416) 362-3646 330 Bay Street, Suite 210 Toronto, Ontario M5J 2S8 eMail: firstname.lastname@example.org Website: www.hooeyremus.com
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