How to do an Examination for Discovery?
By Millad Ossudallah, Vancouver Family Lawyer
A trial is set and you have unanswered questions and concerns about a case. What can you do?
A great way to obtain information in litigation is through an examination for discovery.
What is an examination for discovery?
An examination for discovery is an opportunity to question a person under oath about anything that is relevant to a case. The person conducting the examination for discovery asks the other party questions while a court reporter records everything that is said.
An examination for discovery takes place in a boardroom, or by video conference app like Zoom or Teams. One side gets to ask the questions and the other side has to answer all questions unless they are objectionable for various reasons.
A transcript of the examination for discovery can be ordered but it can only be used in court by the side who asked the questions.
Usually, lawyers are involved but an examination for discovery can be done by non-lawyers too.
Why do an examination for discovery?
An examination for discovery allows you to gather information about the other sides case in a litigation matter. You are able to ask any questions that are relevant to the legal dispute, and you are able to request documents that are relevant that have not been provided. It is a powerful tool to prepare for trial, but it can also help settle a file.
After an examination for discovery, you may realize that that the other side has a very good case, and the witness presents very well. This information may cause you to consider settling before trial. On the other hand, you may realize that the other side has a very weak claim, and they are terrible at giving evidence under oath. This could encourage you to take a strong position and the other side may wish to settle.
In an examination for discovery, do not be scared to ask the big questions at the heart of a case. Indeed, the answers to these questions are going to provide you with the most valuable information ahead of a trial which allows you to see how the other side will present their case. This will help you prepare for trial as you will know what they will argue in advance.
What should you do if you are being examined under oath?
Below are some general tips for answering questions in an examination for discovery:
- Listen to the entire question before responding.
- Treat each question as the first and last question.
- Determine exactly what is being asked before formulating an answer. You can ask that the question be repeated.
- If you don’t know the answer to a question, say so. Do not guess.
- If you do not remember something, say that you do not recall.
- If you know the answer, ask yourself ‘can I answer with a simple yes or no?’. If so, answer yes or no. Don’t give more information than you need to.
- If a yes or no answer is not possible, ask yourself, ‘what is the shortest possible answer to this question?’ Answers can frequently be limited to a single sentence.
- You may be asked the same question more than once – your answer should be consistent.
- You may be asked to familiarize yourself with further information or to obtain documents which have not already been produced. If you have the documents and they are relevant, you will be required to provide them if requested to do so. If you cannot obtain the documents sought, or do not have the means of obtaining the documents requested, disclose this fact.
What questions can I object to in an examination for discovery?
Generally, a lawyer is present who will object to questions on your behalf. The following are examples of objectionable questions:
- Questions that are confusing, vague, or overly broad
- Questions that ask you to provide a legal conclusion
- Questions that ask you to speculate on what other people were thinking or feeling
- Questions that are not relevant to the issues in the case
If a question is objectionable, a lawyer will state the objection and give a reason for it. Bear in mind that objections must be reasonable as it will be recorded on the transcript and will likely be brought up with the judge.
Sometimes a lawyer will object to a question but they are not quite sure if they have a valid objection. In this case the lawyer may say that the question, or document request is “taken under advisement”. In this case, a letter can be sent later referring to the question and providing an answer or objecting and stating the reason for the objection.
What are some other tips for examination for discovery?
What if you answer a question incorrectly at an examination for discovery and only realize the error afterwards? You can rectify this by sending a letter to the opposing counsel/party referring to that question, stating why you answered it incorrectly and providing the correct answer.
Some other examination for discovery pointers to note:
- Don’t be afraid to ask for a break if needed.
- You can make requests for document disclosure at the examination for discovery. If the other party refuses, you can say ‘Mr/Madam reporter, please note counsel’s objection on record.'
- Some questions you may wish to save for trial because you do not want to allow the other party(ies) to be able to prepare a response in advance.
- If the party(ies) you are examining requires a translator, then you will need to arrange for one to be present. The party conducting the examination will be responsible for the cost of the translator.
Examination for discovery is an important step before trial which allows you to gather information and test a witness’s ability to provide evidence. The family lawyers at Crossroads Law have extensive experience in examinations for discovery. Contact us today for your free 20-minute consultation.