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Discovery II:. Examination for Discovery, Medicals and Inspections. Recap: Central Themes. 1. The heart of our adjudicative model is the belief that a judge or jury, given access to all of the relevant facts in a dispute , will come to a decision which reflects fairness and truth; and,.
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Discovery II: Examination for Discovery, Medicals and Inspections
Recap: Central Themes 1. The heart of our adjudicative model is the belief that a judge or jury, given access to all of the relevant facts in a dispute, will come to a decision which reflects fairness and truth; and,
Recap: Central Themes 2. The voluntary settlement of ongoing claims brings efficiency to our system (through reduced time and costs) and, as a result, enhances fairness and access to justice.
Examination for Discovery: Definition: the compulsory, pre-trial disclosure by a party to an action, under oath, of all of the party’s knowledge, information and belief surrounding all of the facts and evidence that are relevant to the issues in the action
Examination for Discovery: Purpose: to allow each party to learn all of the opposite party’s information concerning the lawsuit, including: • the party’s recollection and information of all relevant events, • the names of potential witnesses, and • the party’s position on the legal and other issues of the lawsuit.
Examination for Discovery: Who is present at an X4D? • The witness/party being examined; • his/her lawyer; • the lawyers for any other parties to the lawsuit; • the parties (optional); and, • a court reporter .
Examination for Discovery: How does it work? the examining lawyer is entitled to ask the witness any questions about the facts or circumstances involved in the lawsuit, and the witness is required to answer all relevant questions
Examination for Discovery: How does it work? • when questioned, a witness is required to answer truthfully and fully (under oath), even if the answers are harmful to that witness’ case • if the witness does not personally know the answer to a question, by with reasonable effort can obtain the information from others or from documents that are available, the witness is required to UNDERTAKE to obtain and produce that information (through her lawyer)
Examination for Discovery: How does it work? • the questions and answers are recorded by the court reporter, and a verbatim written transcript is produced which can be used by the OPPOSITE party (ie. the party asking the questions) at trial
Examination for Discovery: What is a lawyer’s ‘hand holding’ role? • the role of the lawyer for the witness is limited to ensuring that the questioning is fair and proper • Improper questions: the witness’ lawyer may intervene to object; otherwise, counsel for the witness should say nothing throughout the exam
Examination for Discovery: Who may be examined? • Parties adverse in interest (R31.03) • Corporations (R.31.03(2), • Examination of a Second Officer, Director or Employee (R31.03(2)(b), • Partners (R31.03(3), • Persons Under Disability R31.03(5), • The Crown,
Who may be examined? • Non-Parties with Leave R31.10(2) sets out the test required for the court to grant leave to examine a non-party: • The moving party has been unable to obtain the information from any other person he or she is entitled to examine for discovery or from the person he or she seeks to examine [ this requires a refusal, actual or constructive, by the opposing party to obtain the information from the non-party]; AND,
Who may be examined? • Non-Parties with Leave con’t.. • It would be unfair to require the moving party to proceed to trial without having the opportunity to examine the person; AND • The examination will NOT: (a) unduly delay the commencement of the trial; (b) entail unreasonable expense for the other parties; or, (c) result in unfairness to the person the moving party seeks to examine.
Scope of the Examination: The Basic Obligation: Rule 31.06deals with the scope of examination for discovery: subr.(1) provides that a person must answer any proper question to the best of his or her knowledge, information or belief relating to any matter in issue or made discoverable by subrules (2) and (4) [re: names and addresses of potential witness, expert opinions and insurance policies]
Scope of the Examination: Rejected Grounds for Objecting to a Question: Rule 31.06(1) provides that you CANNOT object to a question in X4D on any of the following grounds: • The information sought is evidence; • the question constitutes cross-examination, unless the question is directed solely at the credibility of the witness; or, • the question constitutes cross-examination on the affidavit of documents of the party being examined.
Scope of the Examination: “Knowledge, Information and Belief”: Rule 31.06 provides that a witness is required to answer all proper questions “ to the best of his or her knowledge, information or belief” Knowledgeis obtained from the witness’ own personal observations or participation;
Scope of the Examination: “Knowledge, Information and Belief”: Informationis acquired when a witness has not observed or participated in the event personally, but rather has been informed of the event or occurrence by someone else; Belief arises when the witness infers a fact from either personal knowledge or information from others.
“Knowledge, Information and Belief” Obligation: Impact of Obligation: • If the person being examined obtained information from persons who may qualify as potential witnesses at trial, such info must be disclosed (whether it helps or hurts the case of the person being examined);
“Knowledge, Information and Belief” Obligation: Impact of Obligation: • A person being examined is required, without being asked, to make positive efforts to inform herself (from all the persons to whom she reasonably has access) as to the facts and circumstances in issue in the action; • That requires a corporate representative being examined to speak to all others in the employ of the corporation who might have relevant information so as to be able to provide full and complete discovery//
“Knowledge, Information and Belief” Obligation: Impact of Obligation: • If a witness is unable to answer proper questions on discovery, he is required to undertake to make ‘reasonable efforts’ to obtain the information required from others in order to answer the question, and then to provide the information to the examining party.
Examination for Discovery: Scope of Privilege General Rule: the same rules with respect to privilege apply to examinations for discovery and discovery of documents (ie. affidavits of dox) :
Examination for Discovery: Scope of Privilege Two approaches to avoiding the disclosure of sensitive information: 1. “Class Privileges”: litigation privilege, solicitor-client privilege, settlement privilege, police informer privilege, Crown privilege. These are categories of privilege established in the common law; 2. Confidentiality claims : statements made in confidence to doctors, journalists, priests or between those involved in business together. These statements do not attract privilege but are often assessed on a ‘case by case’ basis by courts. Courts have shown a willingness to exclude these communications from disclosure in a sort of quasi-privilege, without expanding the categories of privilege.
Examination for Discovery: Scope of Privilege Exceptions: • **Litigation Privilege***: Rule 31.06 reduces the scope of litigation privilege surrounding documents in an affidavit of documents: A party cannot be compelled to produce a document over which litigation privilege is being asserted. HOWEVER, that protection from physical production does NOT extend to protect the content (ie. relevant facts/information) contained in the document.
Examination for Discovery: Scope of Privilege In practice, a party being examined will be required to disclose all facts and information relevant to the matters in issue EVEN IF the facts and information have been recorded in a document protected from production by litigation privilege AND the party learned of those facts and information only through the litigation privileged document !!!
Scope of Examination for Discovery con’t: Disclosure of Potential Witnesses Rule 31.06(2) provides that a party may be required to disclose the names/addresses of all persons who may have relevant information and who could, therefore, be called as a witness by one party or another. • this obligation, when combined with the obligation to disclose all information re: relevant subject matters, requires a witness to disclose names and addresses of potential witnesses PLUS details of the evidence such witnesses might present, whether favourable or unfavourable
Scope of Examination for Discovery con’t: Expert Opinions: General Rule (Common Law): prohibition against witnesses testifying re: their opinions; generally limited to testifying about their observations Exception: the expert witness who, by reason of special training, education or experience, has developed an expertise that carries her beyond the realm of the lay person is entitled to give evidence as to her ‘opinions’ on relevant matters as her opinions are deemed more trustworthy than those of a lay person
Scope of Examination for Discovery con’t: Expert Opinions: Rule 31.06(3) governs the discovery of expert opinions: VERY wide disclosure obligation surrounding the work of expert witnesses: the party examining a witness is entitled to the “findings, opinions and conclusions” (collectively referred to as the ‘opinion’) of any expert witnesses engaged by the person being examined (plus the name and address of the expert) also, a party must disclose the factual information or documents used by the expert in arriving at her ‘opinion’ (ie. the ‘foundation’ for the opinion) BUT………….
Scope of Examination for Discovery con’t: EXCEPTION FOR “UNFAVOURABLE” OPINIONS: If, pursuant to Rule 31.06(3)(a) and (b), the opinion was formed in contemplation of litigation ONLY, AND the party being examined undertakes NOT to call the expert as a witness at trial, then the party being examined need not disclose either the contents of the expert opinion or the name and address of the expert
Scope of Examination for Discovery con’t: Insurance Policies: Rule 31.06(4) requires disclosure of the existence of a policy, the amount available under the policy and any conditions “affecting its availability” (ie. if the insurer was taking the position that it had a policy defence and needn’t indemnify under the policy)
Scope of Examination for Discovery con’t: Divided Discovery: Rule 31.06(6) provides for a divided discovery, which allows a party to delay disclosing certain information, unless it becomes relevant after the determination of one of the issues in the action This is only granted in cases where “the disclosure of the information before the issues is determined would seriously prejudice a party”
Scope of Examination for Discovery con’t: Questions of Law: Questions of law are not proper However, a person is entitled to examine with regard to facts supporting a conclusion of law pleaded by an adverse party (ie. questions about the material facts underlying a negligence claim..)
Scope of Examination for Discovery con’t: Continuing Discovery: • Often, a party acquires further relevant informationafter the completion of the examination that, if he had known it at the time of the discovery, would have to have been disclosed Rule 31.09(1) requires that the party must provide the updated information in writing to every other party “forthwith” upon discovering it Then, the party receiving the new information may request that the information be sworn in an affidavit OR that the party present himself for a further examination for discovery (Rule 31.09(2)
The Uses of an Examination for Discovery Transcript: • To Read the Examination into the Trial Record as Evidence: Rule 31.11(1) provides that a party may read into evidence, as part of his case against an ‘adverse party’, any part of the evidence given on the exam. for discovery of that adverse party **The disc. evidence given by an adverse party may be read into the trial record only as against that adverse party.
The Uses of an Examination for Discovery Transcript: • To Impeach an Adverse Party on Cross-Examination When a witness gives evidence at trial which contradicts the evidence previously given on discovery, the discovery evidence can be used to impeach that witness’ credibility Any person adverse in interest may use the examination for this purpose (Rule 31.11(2)) In order to use discovery evidence in this way, counsel must comply with ss.20 and 21 of the Evidence Act, requiring that any ‘prior inconsistent statement’ be shown to the witness if it is intended to be used for impeachment, and that the witness be given an opportunity to respond to the inconsistency
The Uses of an Examination for Discovery Transcript: • As Evidence Against the Adverse Party in Another Action: Rule 31.11(8): when an action is discontinued or dismissed and another action is brought involving the SAME PARTIES and the SAME SUBJECT MATTER, the evidence given on oral discovery taken in the former action may be read into or used as evidence at the trial as if it had been taken in the subsequent action
Physical Discovery: Medicals and Inspections Two additional forms of discovery: • the inspection of property and, • the physical/mental examination of parties
The Inspection of Property Rule 32 provides for the court to make an order for the inspection of real or personal property necessary for the proper determination of an issue in a proceeding • this is intended to give a party an opportunity to satisfy her questions beyond the testimony given on oral examination for discovery
The Inspection of Property Grounds for an Inspection of Property Order: there should be ‘the probability’ that the inspection will establish the position of one of the parties regarding a material fact - since the inspection is part of discovery, it should be granted unless it can be shown that it will not assist the court in determining the issues
Physical or Mental Examination of Parties Rule 33 and s. 105 of the C.J.A. govern the medical examination of a party s. 105(2) of the CJAprovides that grounds: where the physical or mental condition of a party is in question,the court may order that the party undergo physical or mental examination(s) by one or more health practitioners (doctor, dentist, psychologist, etc.) Rule 33 details the procedure
Physical or Mental Examination of Parties s.105(3) of the C.J.A. recognizes that the physical/mental condition of a party may be put into issue by another party. If this occurs, the court shall NOT make an order directing a physical or mental examination UNLESS, • The allegation is relevant to a material issue in the proceeding; and, • There is good reason to believe that there is substance to the allegation.
