STIKEMAN ELLIOTT LLP www.stikeman.com

Preparing for and Conducting

Effective Examinations for

Discovery

Aaron KreadenStikeman Elliott LLPOctober 3, 2017

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Purpose of Discovery

Whereas the pleadings in an action define the issues and provide a framework, examination for discovery seeks to elicit the details of the matter in issue

To understand the other side’s case - to eliminate the element of surprise

To secure admissions for use at trial (admissions as to facts or to proof of documents)

Purpose of Discovery

The first real opportunity to know fully the evidence in the possession of the other party and to assess the credibility of the party or its representative

To understand your own case and any weaknesses

This information can assist with assessing the merits of the action and the likelihood of success at trial, which may facilitate settlement of actions

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Discovery Plan

Rule 29.1 mandates that all parties must agree to a discovery plan before the earlier of (i) 60 days after the close of pleadings (subject to agreement by the parties to extend the time) and (ii) attempting to obtain evidence

Discovery Plan must be in writing and include:

– Intended scope of documentary discovery

– Dates for service of affidavit of documents

– Information respecting the timing, costs and manner of documentary production

– Names of those that will be examined and the length of the examinations

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Discovery Plan

Discovery Plan must be updated to reflect changes

On any motion relating to discovery, court can refuse to grant relief or award costs if parties have failed to agree or update a discovery plan

Court can impose a Discovery Plan if there is disagreement

If necessary, bring a motion to approve a Discovery Plan before evidence is taken

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Who to Examine

For corporations, entitled to examine any officer, director or employee.

3 motions regarding the identity of the witness:

– motion to examine a person more than once (Rule 31.03(1)), but leave will only be granted in exceptional circumstances

– motion to examine a second officer/director/employee, but the court will have to be satisfied that satisfactory answers can’t be obtained from only one person without undue expense and inconvenience and it would likely expedite the conduct of the action

– the examinee can bring a motion to substitute a different witness (Rule 31.03(2))

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Discovery Preparation (Your Client)

Review the pleadings

Explain the examination for discovery process - where it will take place and how it will be conducted

Review all essential and relevant documents with your client prior to discovery

Emphasize that the purpose of discovery is to help the opposing side’s case, so nothing that is said on discovery can help at trial

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Discovery Preparation (Your Client)

The witness’ “5 Don’ts”:

– Don’t be untruthful

– Don’t rush

– Don’t volunteer. Make them ask for it

– Don’t get bullied or tricked

– Don’t “play lawyer”

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Preparation (Examination of Opposing Party)

Complete a thorough review of the pleadings to identify the issues in the action and what must be proved at trial, by way of defence or claim

Consider the constituent elements of the claim or defence which must be proved, the evidence anticipated to prove each and a brief summary of the law

Review and organize all documents in your possession as well as those produced by the opposing party

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Preparation (Examination of Opposing Party)

Learn the strengths and weaknesses of your case - you will not be hurt by an answer given during an examination, therefore probe into all areas relevant to the issues in dispute and secure a full understanding of the opposing party's case

To formulate and ask questions effectively on examination for discovery, visualize how the transcript of the examination will read at trial – use short and crisp questions, focusing only on one point

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Conducting the Examination

Be friendly or, at the very least, professional and courteous – however, you have to be firm

Put the witness at ease; start with the easy, non-contentious issues

Try and distinguish between witness’ own personal knowledge and the knowledge of others

Slow and steady

Pauses don’t show up on the transcript

Simple questions so you know what’s being answered

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Finishing Up

Ask for:

– findings, opinions and conclusions of an expert engaged by the party being examined that relate to a matter in issue in the action

– names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action

– disclosure of any policy of insurance under which an insurer may be liable to satisfy all or part of a judgment in the action

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Dealing with Difficult Counsel

You may adjourn to seek directions (Rule 34.14) when:

– There are excessive interruptions / objections that are denying you your right to an examination;

– The right to examine is being abused by excess of improper questions;

– The examination is being conducted in bad faith or in an unreasonable manner; or

– Many of the answers are evasive or unresponsive.

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Dealing with Difficult Counsel

Usually want to continue and then close subject to a reservation of rights

Know your rights

Get your questions on the record

Don’t be bullied

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STIKEMAN ELLIOTT LLP www.stikeman.com

For further information

Aaron Kreadenakreaden@stikeman.com