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What to Expect In An Examination for Discovery

An important part of a civil action is when parties participate in an Examination for Discovery. Commonly referred to simply as “Discovery”, this is a process where each party asks the opposing party (or parties) questions about the matters at issue. Details on an Examination for Discovery can be found at Rule 31 of Ontario’s Rules of Civil Procedure.

Discovery usually occurs after pleadings have been filed. It creates the opportunity for all parties to gather more information, assess the strengths and weaknesses of the case, and prepare for trial.

Examination for Discovery involve lawyers from one side asking individuals from the opposing side a series of questions. Usually, there will be one opportunity to examine an individual, unless the court provides permission for the lawyer to examine that individual multiple times.

Where a corporation is being examined, officers, directors, or employees may be asked to answer questions on behalf of the corporation.

Discoveries can occur through written questions, orally, and in rare circumstances, through both methods. Nowadays, many oral discoveries occur through videoconference.

What Questions will be asked at an examination for discovery?

If someone is a party to an examination for discovery, the process can at first appear intimidating if you don’t know what to expect. The following are some common types of questions that are generally asked at an examination for discovery:

  1. Introductory questions – such as job title, role, etc.
  2. Factual questions – questions of facts discussed in the pleadings are also asked
  3. Questions about particular documents or correspondence
  4. Questions concerning relevant witnesses to the events of the case, and
  5. Questions about the existence of further documents or evidence.

How to Answer Questions When Being Examined

During an Examination for Discovery, you will be required to swear an oath or affirmation that you are being truthful. Then, the lawyers for the other side will ask you both general questions and detailed questions as they relate to the legal matter.

It is important to prepare for an Examination for Discovery. It is generally advisable to review key documents in your case. Many clients find it helpful to develop a timeline of events to keep their answers organized. This will also help you anticipate the questions that you may be asked.

When answering questions, remember to listen carefully and fully to the question being asked. Then, answer only the question that was asked, honestly, and to the best of your ability. Usually, a short and to-the-point response is best.

If you do not remember the answer to a question, then state that you do not remember. If you do not understand the question, you can ask for it to be repeated to rephrased. It is important to note that any responses you provide at an Examination of Discovery can be brought up again at trial. If your responses from Discovery are inconsistent from your answers at trial, this may be used against you during the trial and may impact your credibility.

If a question that is being asked is irrelevant or inappropriate, your lawyer will usually make an objection.

You can request breaks during an Examination of Discovery. However, you are not to have a private discussion with your lawyer while you are still in the process of being examined.

Best Practices for a Videoconference Discovery

One of the long-lasting impacts of the COVID-19 pandemic is the greater use of technologies, such as videoconferencing, by the legal system. Examinations for Discovery are now being held through various videoconferencing platforms such as Zoom, Google Meet, and Microsoft Teams.

It is always a good idea to test your device and video conferencing platform ahead of time. Also have a backup plan to participate or contact your lawyer in the event that you experience technical difficulties.

When participating in a Discovery via videoconferencing, only have that videoconference platform on your screen, and the relevant documents to the legal matter. Usually, the relevant documents are the Statement of Claim, Statement of Defence, Reply (the pleadings), and the Affidavit of Documents.

It is advisable to set everything else aside to avoid distractions and to avoid taxing your device. That means closing chats, internet browsers, and turning off your phone or putting it on silent and placing it face down.

Even though you are at home, you should remember that you are participating in a legal proceeding. You should be alone in the room, but if someone else enters, make sure to advise everyone immediately, so they may pause.

Whether your oral Examination for Discovery is in person or via videoconference, be aware that it will usually be recorded. This may be through a transcriptionist or through an audio recording. Therefore, it is important to speak clearly and slowly.

We hope this overview will provide you with the tools you need to understand and participate in the discovery process with confidence.

Contact Us

If you are an employer or an employee, and have an upcoming Examination for Discovery or have any questions about the process, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.