By Carly Harris
An examination for discovery plays a very important role in civil litigation. It is a process where the parties have the opportunity to ask each other questions prior to trial through their lawyers. Examinations for discovery are beneficial because they equip the parties with necessary information that can be used to move towards a settlement or strengthen the case at trial. During this out-of-court examination, a court reporter records all questions and answers and produces a written transcript at a later date.
Who Can Be Examined?
A party to an action can examine any other party adverse in interest only once. A party can be examined by the same person more than once with leave of the court.
Corporations, partnerships, and sole proprietorships may also be examined for discovery. For corporations, the examining party may examine any officer, director, or employee on behalf of the corporation. For partnerships and sole proprietorships, the examining party may examine each person who was, or is alleged to have been a partner or the sole proprietor. If provided leave of the court or with consent of the parties, one or more employees of the partnership or sole proprietorship may also be examined.
What is the Form of the Examination?
An examination for discovery usually takes the form of an oral examination. However, an examination by written questions and answers is permitted in certain circumstances.
Initiating the Process
An examination for discovery cannot be initiated by either the plaintiff or the defendant until the defendant delivers a statement of defence, and unless otherwise agreed, the examining party has served an affidavit of documents.
The party who first initiates the examination for discovery by serving a Notice of Examination may examine first and complete the examination before being examined by another party.
Examination Questions
A person examined for discovery must answer, to the best of his or her knowledge, information and belief, any proper question that is relevant to any matter in issue in the action or any matter made discoverable by the Rules of Civil Procedure. A question cannot be objected to on the grounds that the information sought is evidence, the question constitutes cross-examination, or the question constitutes cross-examination on the affidavit of documents of the party being examined.
If the party being examined fails to answer a question, the party may not introduce the information that was not provided at the trial. Failure to answer a question includes refusing to answer whether on the grounds of privilege or otherwise, the question is considered or taken under advisement but no response is ultimately provided, and the party undertakes to answer the question but no response is ultimately provided.
The party being examined also has the duty to correct answers if he or she subsequently discovers that the answer to a question on examination is no longer correct and complete or was incorrect or incomplete when made. Where a party has failed to correct answers and the information subsequently discovered is favourable to the party’s case, that party cannot introduce the information at trial. If it is not favourable to the party’s case, the court may make such order as is just.
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