What is an Examination for Discovery?

One of the most commonly asked questions has to be, what is an Examination for Discovery? I always like to answer this question by referencing law movies and TV shows – an Examination for Discovery is the part of the movie where the lawyers on each side sit in a room and have the opportunity to ask the parties involved in the litigation questions under oath. As most movies and TV shows we watch are American, we may be more familiar with the process being called a “Deposition”.

Despite what Hollywood may have you believe, in reality Examinations for Discovery (or “ED’s”) are not the dramatic events depicted in which the parties yell and scream or stomp their feet. Nor is the process video recorded, as is often portrayed. In reality, the exchange during an ED is taken down by a reporter and later produced as a written transcript, if so requested. The demeanor of the parties is also much more civilized in reality, though can get slightly contentious at times if opposing counsel disagree on legal points. Put simply, ED’s are a pre-trial procedure meant to advance the “discovery process” in which the lawyers ask questions aimed at gathering information and evidence relevant to the case or to discovering relevant facts.

There are a number of rules that govern the process of an ED set out in the Rules of Civil Procedure made under the Courts of Justice Act R.R.O. 1990, Reg. 194. Under those rules each side to a law suit has the right to discover the opposing party (ask questions of you under oath). Your answers, or deposition, can help you or hurt you, depending on your attitude, truthfulness and appearance. Here are a few brief tips on how to prepare for an ED:

• Re-acquaint yourself with the facts of your case: review any and all documents that you have in your possession related to the case, it is your job to provide answers and explain the facts. However, if during the examination you cannot remember details or do not know the answer, you should not fret. This is not a test and it is ok to say that you cannot recall or do not know the answer.

• Gather information: if there is any information that has not yet been provided to the opposing side and is relevant to your case, such as the names of doctors or service provides, dates of treatment or attendant care services, etc., gather that information and have it ready in case it is requested by opposing counsel. This will eliminate the number of “undertakings” requested by opposing counsel and will assist in moving your matter along more quickly.

• Get a good night rest the night before your ED: a good night sleep will help you feel relaxed and calm your nerves about the process. You will be able to think more clearly and the process will run more smoothly.

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