An examination for discovery is an oral examination under oath.
An examination for discovery involves a meeting where one party asks an opposing party questions about the issues in the dispute. For example, in a case arising from a marriage breakdown, a party may want to ask the other party about what large amounts of money were spent on.
Examinations for discovery are part of the litigation process, but they do not take place in open court, and no judges or court officials are present. The examination takes place in the presence of a court reporter that records each question and its answer, and then provides a transcript (a written record) of the examination. The party answering questions must take an oath or give a solemn affirmation that they will tell the truth. The transcript of the examination for discovery, or portions of it, may be used at trial.
Unless the court orders, or the parties agree, examinations for discovery are limited to 5 hours per party conducting the examination. (See Rule 9-2(2)).
These two processes – examinations for discovery and document discovery – are very important to preparing your case. They go hand in hand. Once you have documents, you can review them and determine which questions still need to be answered by the other party at an examination for discovery.
And, when you have finished an examination for discovery, you might want to request further documents.
Arranging the Examinations for Discovery
You arrange an examination for discovery using an Appointment to Examine for Discovery (Form 21). There are several things to consider when booking an examination for discovery:
You must serve Form 21 at least 7 days before the date selected for the examination. (See Rule 9-2(12)). It makes good sense to wait until all the pleadings have been filed by both parties before scheduling an examination for discovery. That way you will know exactly which issues are in dispute.
In thinking about an examination for discovery, you need to consider:
- When do you want to examine this person? You need to make sure that you are available, that the person you want to examine is available (and their lawyer, if they have one).
- What do you want to ask? You might want to get advice from a lawyer to make sure you are asking questions of the other party that are both appropriate and admissible in court if the case proceeds to trial.
- What documents do you want to use in your discovery? You can bring listed documents (either yours or theirs) to the discovery and ask questions about these documents.
- What court reporter will you use? There are many court reporters and most of them will provide a boardroom that you can use for your discovery. Make sure you book the court reporter as early as possible as they are busy and their boardrooms are often booked up. You can find court reporting services listed in your telephone directory or online.
Do You Have to Pay Anyone?
When you examine a person for discovery, you are required to pay them a witness fee. Schedule 3 of Appendix C to the Supreme Court Family Rules sets out the fees payable to witnesses.
Make sure that you know how much it will cost you to examine the witness before you go ahead with the discovery. If the witness lives out of town, you will have to pay for their travel expenses, a per diem (per day) rate for meals, and a hotel if they have to stay overnight. Ask a lawyer for advice about this if you are concerned about the cost of examining your witness.
What Questions Can You Ask?
Questions on examinations for discovery can be quite broad and can be asked about anything that is related to your case. In some cases, the person being examined cannot answer a question right away and you might need to ask him or her to find out the answer after the examination and send it to you by letter.
The person being examined for discovery must answer any question within his or her knowledge (or that is possible for them to find out), regarding any matter that is not privileged, relating to any matter in question in the action. You can also ask the person being examined the names and addresses of other people who might have information relevant to the proceeding.
The party being examined may refuse to answer a question. These are called objections. If the party asking the question does not believe that an objection is appropriate, he or she may schedule a chambers application after the examination to ask a judge to direct the person to answer the question. For more information on bringing an application see Family Guidebook - Chambers Applications.
The evidence from an examination for discovery can be used at trial by the other side. It can be “read in” to the record if the person discovered made admissions. Further, it can be used to challenge credibility if different answers are made at discovery and on the stand.