Examination for discovery

How BC law treats it

Examinations for discovery are governed by Rule 7-2 of the Supreme Court Civil Rules. Each party adverse in interest may examine a party once as of right, under oath, before an official court reporter. The total time is capped at seven hours unless the person being examined consents or the court orders more. Where a party is a corporation, the examining party may usually examine one current or former director, officer, employee or agent chosen by the examining party, subject to court control. The person examined must answer relevant questions within their knowledge and, where asked, inform themselves and give undertakings to provide information or documents later. A party's lawyer can object to questions, for example on privilege, but the usual remedy for an improper refusal is a court application. An examination for discovery is not the same as a BC deposition. A non-party witness can be examined before trial only with a court order under Rule 7-5. A deposition under Rule 7-8 is a different procedure used to preserve a witness's evidence for use at trial, for example where the witness is ill or will be outside the province. At trial, an adverse party may read in parts of a party's discovery evidence under Rule 12-5. A party cannot read in its own discovery evidence to prove its case. Transcripts are also covered by the implied undertaking of confidentiality: they may be used only for the litigation in which they were obtained unless the court permits otherwise (Juman v Doucette, 2008 SCC 8). In a fast track action under Rule 15-1, examinations for discovery are limited to two hours.

What it means for your business

For a business in a BC lawsuit, the examination for discovery is often the moment the case is won or lost before trial. The owner or the employee chosen to speak for the company will be questioned under oath for hours, and every admission can later be read in against the company. Careful preparation, a complete document list and accurate undertakings reduce the risk of damaging answers. A strong discovery of the other side often drives settlement. Example: A Kelowna equipment supplier sues a contractor for unpaid invoices. At the contractor's examination for discovery, its project manager admits the equipment was delivered and used, and the supplier reads that admission in at trial to prove delivery.

Risks and common mistakes

Treating the examination as an informal conversation and volunteering information beyond the question asked. Guessing at answers instead of saying the witness does not know or will inform themselves. Failing to fulfil undertakings promptly, which invites a court application and costs. Assuming the company can choose which employee is examined, when the examining party usually makes that choice. Using a discovery transcript in another dispute without court permission, in breach of the implied undertaking.