Supreme Court Civil Rule 7-2 sets out the rules for examining each party for discovery. During this process, lawyers for each party may ask questions of the other parties as part of a fact finding mission. However, even though examinations for discovery are part of the litigation process, the questions are not asked in open court. Instead, the examination takes place in the presence of a court reporter who will record the answers and provide a transcript, which may be used at trial. The time allowed for an examination is usually limited to 7 hours per party (but can be extended by court order).
To arrange an examination for discovery, your lawyer will serve the party who they wish to examine with an Appointment to Examine for Discovery in Form 23.
Determining when your lawyer will examine the party is crucial to ensure all parties, including the court reporter, are available for the meeting. Also, civil procedure states that your lawyer must serve Form 23 at least seven days before the examination date.
Choosing the appropriate questions to ask at discovery can make or break your entire case, especially if any of the issues require a detailed explanation from other interested parties. It is vital to make a complete plan and get advice to form a comprehensive strategy in this process.
When your lawyer examines a party, you are required to pay a witness fee. Schedule 3 of Appendix C to the Supreme Court Civil Rules sets out the specific fees required. One of the main factors is where the witness lives. If the witness lives out of town, they may be entitled to travel expenses.
The spectrum of questions that may be asked at Examination for Discovery is quite broad, as long as the question relates to the matter at issue it will generally be allowed. Generally, the person being examined must answer any question within their knowledge including the names and addresses of other people who may have relevant information. However, privileged information (see above) is not discoverable during an examination; meaning that the party being examined cannot be asked about their litigation strategy or communications with their lawyer. There are also situations where the person questioned can refuse to answer (called an objection).