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What is an examination for discovery?

Lawyers and a client during examination for discovery. Stock photo by Getty Images.

An examination for discovery is a step in the civil lawsuit. A civil lawsuit is one in which person A sues person B for some type of non-criminal wrongdoing and asks for a remedy such as monetary damages.

An examination for discovery takes place before the trial. It is a meeting between parties where each side asks the other questions in person to uncover facts and determine the strengths and weaknesses of parties’ positions.

An examination for discovery may help parties to resolve some of the issues. This may assist in narrowing the scope of what is in dispute. It may also lead to the settlement of the claim altogether.

The parties who get examined are the plaintiff and the defendant. They swear to tell the truth. Each side may ask the other any question it sees fit. However, lawyers may caution their client not to answer a question if they think it is irrelevant or has been answered. Answers may be based on actual knowledge, information or belief.

Witnesses do not get examined at this stage. They often get examined and cross-examined during a separate process called pretrial examination of witnesses.

Examinations for discovery are recorded by an official examiner or court reporter. No judge, mediator, or other type of adjudicator is present during a discovery.

After the discovery, a written transcript of the questions and answers can be ordered for a fee. Parties may use the answers to prepare for trial.

In most jurisdictions, the examination for discovery may not exceed a certain number of hours. In Ontario, for example, the limit is seven hours unless you get a court order to extend the time. The rules related to the examinations for discovery are usually contained in the province’s rules of civil procedure. In Ontario, they are covered in Rule 31 of the Ontario Rules of Civil Procedure.

If during the session, it is revealed that some information is not known or further documents must be consulted and/or produced, the lawyers can give a promise (called an “undertaking”) to look into it further.

Parties are required to continue to update the answers they provided in the discovery. If they find out they answered a question incorrectly or new information comes to light that makes their previous answers wrong or incomplete, they must inform the other side of the updated answer.

It is important to know who to examine. If the lawsuit involves one plaintiff and one defendant, the answer is easy. If you have sued a company, however, you may want to examine the person who is best knowledgeable of the facts that your claim is based on.

The examination for discovery may not happen until both the statement of claim and statement of defence have been filed with the court and served on the other side. It cannot happen before parties have served their affidavits of documents on the other side or have agreed otherwise.

The affidavit of documents helps you disclose your documents to the other side. It lists all the documents each party has in its possession or control.

In order to prepare for an examination for discovery and ask the right questions, it is helpful to consult with a lawyer.

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Civil and criminal cases

Examinations for discover