Examination for Discovery: What You Need to Know

A crucial phase in a civil action is the Examination for Discovery, sometimes referred to simply as “Discoveries”. This stage involves one party to the action questioning a representative from the other party about the issues in dispute.

Typically, parties conduct Discoveries after submitting the pleadings but before commencing a trial. Discoveries may take place before or after mediation. This stage enables parties to gather information, assess their positions, and prepare for trial.

This article will cover preparing for Examinations for Discovery, procedural expectations, and essential best practices to consider.

What Should You Do Before & Examination for Discovery?

Prior to Examinations for Discovery, the parties will exchange an Affidavit of Documents which contains all relevant documents that will be relied upon at trial. The Affidavit of Documents plays a vital role in the Discoveries process, as lawyers often utilize the information received from opposing counsel to shape the questions they plan to ask.

Shortly before Discoveries, each side will send a Notice of Examination to confirm the intended examinees. Generally, an individual is typically examined only once, unless the court grants permission for multiple examinations. However, if a corporation undergoes examination, the corporation’s officers, directors, or employees may answer questions on its behalf.

Prior to Discoveries, it is highly advisable to consult your lawyer for a clear understanding of the presented evidence and its significance. Practicing and preparing for potential questions from the opposing party prove beneficial.

It is also a good idea for the lawyers to engage in creating a Discovery Plan prior to exchanging Affidavits of Documents. Discovery planning involves early discussions between counsel or parties to agree on certain aspects of the Discovery process. This can include the scope, production methods, examination procedures, expert evidence, and disclosure timelines.

Effective planning helps address potential issues such as late document delivery, incomplete production, excessive requests, scheduling difficulties, refusals, delays in fulfilling obligations, and scope disagreements.

Prior discussions with opposing counsel can be helpful for successful advocacy and cooperation. Consensus on Discovery matters ensures timely and organized document production, and reduces the chances of prolonged disputes.

Navigating Questions & Responses During Examinations for Discoveries

Parties can conduct Discoveries orally or in writing, in either a physical or virtual setting. During Discoveries, participants take oaths, and their submissions undergo review and discussion at trial. Typically, examinations involve lawyers, the examined witness, and a court reporter.

During the examinations, lawyers ask a series of questions to individuals under oath from the opposing side. The purpose of these questions is to gather evidence – either admissions, information, or documents – that can be used to help their claim or defense.

When called for examination, the court reporter will ask you to swear or affirm truthfulness. Then, the opposing side’s lawyers will ask you both broad and specific questions related to the case. Court reporters typically transcribe or record the entire questioning period, enabling later review of everything said during the examination.

Commonly asked categories of questions during Discoveries.  

• Introductory questions: the opposing lawyer may inquire about your name, job title, background, and other pertinent details to establish your identity and connection to the case.
• Factual questions about points discussed in the pleadings: these questions seek clarification or further elaboration on specific arguments, claims, or assertions made in the pleadings filed. The purpose is to gain a better understanding of the factual basis and supporting evidence for each party’s position.
• Questions related to specific documents or correspondence: these inquiries relate to particular documents, such as contracts, emails, letters, or other forms of written communication, which are relevant to the case. The aim is to establish their meaning or significance within the legal context.
• Questions regarding relevant witnesses to the case events: these questions seek to identify individuals who have firsthand knowledge or were directly involved in the events that gave rise to the legal dispute. They aim to establish the credibility and testimonial value of potential witnesses.
• Questions about any additional documents or evidence: this inquiry is to ensure a comprehensive and thorough examination of the available information and to verify that the questioned party has submitted all relevant evidence.

Preparation for an Examination for Discovery is essential. Reviewing evidence and constructing a timeline aids response organization and anticipates potential questions.

Here are some tips to keep in mind:

• Listen carefully to each question;
• Respond honestly and concisely;
• Ask for clarification when needed;
• Refrain from going off-topic; and
• If you don’t remember or don’t know an answer, clearly state that.

Recalling that your responses will be revisited at trial is crucial, as inconsistencies between Discovery and trial answers impact your credibility. Your lawyer will usually object to any irrelevant or inappropriate questions. During an Examination for Discovery, it is possible to request breaks; however, private discussions with your lawyer are not allowed during the examination.

Conclusion

Examination for Discovery provides an opportunity for parties to question each other on the issues in dispute. Consulting your legal team is vital to ensure comprehension of the evidence, and to practice and prepare for potential questions from the opposing party.

Engaging in Discovery planning with the opposing party promotes cooperation, streamlines document production, and minimizes disputes.

Expect diverse questions during Discovery, including introductions, clarifications, document queries, witness identification, and requests for more evidence.  Listening carefully, responding honestly and concisely, seeking clarifications when needed, and answering only the question being asked are all crucial.

To navigate the Discovery process effectively and build a strong trial case, you should understand the process, prepare thoroughly, and follow best practices.

Contact Us

If you are an employer or an employee and have an upcoming Examination for Discovery or have any questions about the civil dispute process, our team of experienced workplace lawyers at Achkar Law can help. Contact us now at +1 (866) 545-5801 or email [email protected] for the solutions you need to move forward.

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