"Examination for discovery is a useful procedure which enhances the quality of litigation by removing surprise, defining and clarifying issues, and simplifying the proof of many matters. It can also be a procedure of oppression in the hands of some counsel who seem to have unlimited time and resources.... Examinations for discovery which go on for endless days often indicate a lack of appreciation about what is relevant, and what is important.

"Unfortunately, it has become the practice in this court for counsel to indulge themselves in interminable examinations before they decide what the case is about. It has become, in many cases, a learning experience for counsel about the case in which he is engaged.... Often transcripts of interminable examinations for discovery are never looked at during the trial."


Justice Allan McEachern in Allarco Broadcasting v Duke (1981)

Examinations for discovery, aka depositions or oral interrogatories, have a wonderful and rich history. In Shakespeare's England, as the dispute between the parallel common law courts and those of Chancery was at its height, the latter innovated by allowing a litigant to apply for a “bill of discovery”. Such an order, routinely granted, obliged the other side to answer written questions (interrogatories) and disclose designated documents.

Discovery was not automatic; you had to ask for it. Nonetheless, discovery as we now know it was born!

In the common law courts, the litigation system relied entirely on the pleadings right up to trial. In this way, both parties were usually surprised at trial by the other's evidence and many opportunities for settlement never presented themselves.

In 1854, English law was changed to give all litigant's a right to obtain disclosure of all relevant documents held by the other side, as well is a right to demand written answers to specified questions (interrogatories).

Examination for DiscoveryBut the law in England did not allow for oral interrogatories which, in Canada, we call examination for discovery in which, in the United States, or called depositions or oral examinations. In fact, to this day, examinations for discovery were not conducted in England.

Just is the law in England was changing, Canada began to develop an independent legal system although heavily borrowing from England. In about 1850, Ontario allowed litigants to examine the other side privately, before trial and under oath: an examination for discovery – but only in Ontario’s Chancery courts. In the common law courts of Upper Canada, discovery was by interrogatories until 1873, at which time examinations for discovery were made available to all litigants.

As of 2008, here is an extract of the law in Ontario:

“... an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.

“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....

“Where a corporation may be examined for discovery, the examining party may examine any officer, director or employee on behalf of the corporation...."

On points of detail, the provisions for an examination for discovery varies from province to province but in substance, they have much in common. For example, in Alberta: “before trial, a party to proceedings may orally examine under oath, without an order of the Court, any other party to the proceedings who is adverse in interest....” Similarly, in British Colombia: “An examination for discovery is an oral examination on oath. A party to an action may examine for discovery any party adverse in interest.”

In Quebec, the examination for discovery is called examen au prealable or, the newer term interrogatoire au prealable and is set out in the Code of Civil Procedure. As of 2008, the amount at issue in the litigation has to exceed $25,000 before there is an automatic entitlement to convene an examination on discovery.

Some of the differences in regards to point to detail from one province to another are essential. In some provinces, you cannot convene an examination for discovery until the pleadings have been exchanged. In others, you can convene an examination for discovery before the statement of defense has been filed. For these reasons, it is essential that you consult with the relevant law of your jurisdiction before making any decision as to an examination for discovery.

The purpose of discovery, whether it be disclosure of documents or examination on discovery, is to get as much information as you can on the other side’s case. Another purpose is to seek out admissions which might be helpful in terms of settling or at trial.

In Graydon, the stage was set for a classic examination for discovery:

“Graydon in this action sues two daughters and a son, issue of his first marriage, alleging that, after his second marriage, these defendants conspired together to poison his mind against his second wife....

 

"It must always be kept in mind what the purposes of examination are. It is primarily for the purpose of enabling the opposite party to know what is the case he is called upon to meet, and its secondary and subsidiary purpose is to enable the party examining to extract from his opponent admissions which may dispense with more formal proof at the hearing.”

An examination for discovery conducted by a lawyer experience in court allows his/her litigant to ascertain how the other side would likely perform at trial; whether the litigant is credible, argumentative or confident, or even a bit "slow".

Most provinces do not set out who should go first in an examination for discovery. Usually, the plaintiff goes first.

The scope of examination for discovery is generally very wide, with the pleadings serving as anchor. The judges want the litigants to know each other's strengths and weaknesses so as to promote settlement and to reduce surprises at trial which, they say, is in nobody's interests. Choate on Discovery quotes the British parliamentarian Henry Brougham as saying, in 1828:

“... whatever brings the parties to their senses as soon as possible, especially by giving each a clear view of his chances of success or failure and, above all things, making him well acquainted with his adversary’s case at the earliest possible moment, will always be for the interest of justice.”

Perhaps a better expression of the latitude judges allow litigants in examinations for discovery was expressed by Justice Brown in Goddard:

“It would be easier to deal judicially with contested discovery if one knew to which of the  many kinds of sport or commercial fishing the learned judge first use that murky expression had reference ... in at least one sense all proper discovery is fishing.”

In an examination for discovery, the person conducting the discovery has the absolute right to lead the questions without interruption by the litigants lawyer.

Many lawyers get wrapped up in their client's case which is usually a good thing but does have a tendency to add a certain edge to examinations for discovery which often can lead to heated exchanges and tremendous stress all around. It is one thing to be “assertively inquisitorial” and quite another to be rude. An examination for discovery is a Q&A, not a replacement of the cross-examination at trial although the questioning technique will be identical.

In Pearlman, Justice Middletonthe Ontario Court noted that:

"Before the plaintiff goes to trial, he has the right to know clearly and with certainty what it is that the defendants set up against him, so that he may be prepared to meet the case.

"An examination is not intended to take the place of cross-examination at the trial, nor is it intended to afford counsel a preliminary opportunity of making, in private, caustic or insulting remarks to his client's opponent."

Indeed, legal counsel would have a tactical interest in not giving a litigant a heads’ up as to their client’s case by over-assertiveness on certain issues. Conversely, a litigants should see a lawyer’s aggression on a certain as a window into his client’s case.Court reporter

An examination for discovery is a litigant’s first opportunity to test his or her case and to develop evidence support thereof.

But far too many lawyers abuse examinations for discovery in recognizing that total employees or other nonverbal intimidation does not show up on the transcript. Only words do. In this way, they can manipulate the responses of a nervous, unprepared or belligerent witness. Lawyers know that in most jurisdictions, the transcript of an examination for discovery cannot be used at trial unless discredit something the witness says at trial. They use this information to set the litigant up for trial.

For a real eye-opener on really bad examinations for discovery, do not miss Duhaime's Crazy Justice Videos.

Here are some pointers:

  • If, at an examination for discovery, you do not understand the question, say so.
  • Do not answer “uh-huh” or by shaking your head. Those responses do not show up on the transcript.
  • Further, do not overstate your case. When it comes to figures and distances, the approximate and in any event, never guess.
  • Do not try to anticipate a question.
  • If you cannot answer a question, say so.
  • If you are asked to agree to a statement, exercise caution because if you agree to it, the words will be taken as if they were your own.
  • If you feel that although you cannot answer a certain question, you might be able to answer it if you made certain inquiries, offer to do so.
  • Keep your answers brief and direct and never volunteer information.
  • Do not exaggerate or speculate in your answers.
  • Tell the truth.
  • Take your time in answering questions. The transcript will not show how long it took you to answer.
  • If you have a lawyer and your lawyer tells you not to answer questions, do not answer.
  • If you feel you need to refer to a document in order to answer a question, ask for the documents.
  • If the document is entered into the record, pause and give the reporter a chance to mark it and refer to it on the record, before expounding upon it.
  • Questions of law are not fair questions to a witness at examination for discovery.

Witnesses at an examination for discovery should remain emotionally flat no matter how much goading he or she takes from the lawyer. If a lawyer crosses the line in terms of rudeness, it is all is an option for the witness to leave the discovery, hoping to thereafter justify their departure if raised with the court.

Always remember that the most important thing is the transcript and it is what is on the transcript that would later assistant judge having to review someone's conduct at an examination for discovery. It is not uncommon for a lawyer to note on the record what may appear to be an insignificant event; they do this to put on the record. For example, if a witness marks up an exhibit when it is handed to him for identification only, it is important to note that on the transcript. Similarly, if a witness makes an aggressive gesture, it is not uncommon to have that noted on the transcript.

Always speak clearly and never speak to quickly so that the court reporter can properly make out your words.

Examinations for discovery are you to conducted without a judge present, but before a court reporter. They are expensive because lawyers have to prepare for them (i.e. a legal bill), and the costs of room rental and the transcript quickly add up. Sometimes, lawyers or litigants make the mistake of plodding through document after document at an examination for discovery. This is a waste of time. Only those documents essential to be legal case ought to be exhibited at an examination for discovery such as, for example, the actual contract in a contract law case.

At examination for discovery, you want to lead the other side through his or her facts and documents, together, his or her evidence, and preferably chronologically.

Examinations for discovery or technically difficult to conduct which is a distinct advantage to litigants capable of paying for the services of a lawyer. For example, questions relating to privilege and relevance may be properly objected to a litigant represented by counsel but rare would be the litigant with the technical wherewithal to understand those distinctions.

 Increasingly, Canadian jurisdictions are questioning the need for examinations for discovery and they may soon become a thing of the past. Because each jurisdiction has evolved at a different speed on this issue, this article is intended only as a general introduction to oral examinations, also known as examinations for discovery. If you have a real examination for discovery issue, consult the laws in your jurisdiction.

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