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After affidavits of records have been served, each party can conduct oral examinations for discovery of all other parties adverse in interest. Corporate parties must designate an officer to be examined for discovery.
Employees and former employees of parties can also be examined for discovery if they have, or appear to have, knowledge of a matter raised in the pleadings that was acquired by virtue of their employment.
Examinations for discovery are intended to allow the parties to discover the relevant facts within the knowledge of adverse parties. Through the examinations, parties endeavour to obtain admissions and avoid surprise at trial.
Counsel for the parties conduct the examinations for discovery. The parties who are being examined attend with their counsel. Any other party to the action can also attend. The examinations proceed without a judge being present.
The evidence at examinations for discovery is given under oath. A court reporter transcribes the questions of counsel and the answers of the witness, and anything else said on the record.
Witnesses at examinations for discovery are only required to answer relevant and material questions. A question is relevant and material if the answer can reasonably be expected to significantly help in the determination of one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help in such determination.
Because of the schedules of the parties and their counsel, examinations for discovery may not commence until several months after the pleadings and affidavits of records have been served.
The amount of time required for examinations for discovery will depend on the number of witnesses to be examined, the length of the period of time in which the relevant events occurred, and the complexity of the factual issues. In most cases, each of the parties will be examined for at least half a day. Often, a witness will be examined for a day or more.
At examinations for discovery, the parties often give undertakings to obtain and provide relevant and material information and records. A significant amount of time and effort is usually required to respond to undertakings. Often, there will be further examinations relating to the responses.
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