What is ‘discovery’ and how do I prepare for it? (part II)
Part I of this blog discussed the discovery process in general as well as the first two steps: creating the discovery plan and exchanging affidavits of documents. Part II of this blog post will focus on the final steps in the discovery process: examinations for discovery and fulfilling any obligations that may arise afterward.
Step three: examination for discovery
The examination for discovery is an opportunity for each party to pose questions to the opposing party (or parties if there are more than two parties involved in the lawsuit). Usually, examinations for discovery take place in person, often in a boardroom, with all parties and their lawyers attending. A court reporter also attends to keep a record of the questions and answers so that a full transcript can be prepared afterward. Sometimes the examination for discovery is also videotaped.
Before the examination for discovery happens, you or your lawyer will receive a Notice of Examination (Form 34A) which will outline the date, time, and place for the examination for discovery. This form will also indicate which documents you are expected to bring with you. Your lawyer will probably want to meet with you in advance to go over the procedure and review the requested documents that were listed in the Notice of Examination.
On the day of examination, before you begin responding to questions, you will be required to swear an oath or make a solemn affirmation to tell the truth. Unless your lawyer advises otherwise, you will be required to answer all questions to the best of your knowledge, information, and belief. Since you are providing answers under oath, it is imperative that you answer all questions honestly and admit when you do not know the answer. Even though your lawyer will be there with you, your lawyer may not answer any questions on your behalf unless the other party consents. If you do not know the answer to a question that is posed to you, you may have to undertake to provide the other party with an answer at a later date.
Step four: fulfilling obligations that may arise after examination for discovery
If you made an undertaking to provide the other party with an answer or document at a later date you must do so. If you do not provide the answer or document as promised, the other party may seek a court order to compel you to comply with your undertaking and you will likely incur additional costs and fees. If you think you may be unable to fulfil an undertaking you should inform your lawyer immediately.
Another obligation that can arise after examination for discovery is the duty to correct inaccurate or incomplete answers. You may realize afterward that you accidentally provided an answer that was incorrect or has since become incorrect. If this occurs, you should contact your lawyer immediately so that he or she can provide the other party or parties with the correct information. Otherwise, if the court becomes aware that you discovered an inaccurate or incomplete answer and subsequently failed to correct it, you could jeopardize your case and expose yourself to significant cost awards.
Discovery can feel like a lot of work, but sharing information often helps the parties to reach a full or partial settlement and thereby avoid the expense and delay of a full trial. Even when a full trial cannot be avoided, the discovery process helps parties prepare for trial so that it is as efficient and expeditious as possible.