Nunatsiaq News
COMMENTARY: Nunavut January 08, 2018 - 2:30 pm

Legal Ease, Jan. 8

What is civil discovery?


It’s a new year and time for new beginnings and fresh starts.

Legal matters are like any other and sometimes need a fresh approach—it’s easy to get caught up in the process and lose sight of the important human issues.

That said, I am going to speak today about one of the more procedural issues in law–the process of civil discovery.

In a civil lawsuit there is an underlying concept of full disclosure. The parties should know pretty well everything about the other side’s case—the idea is that this will lead to rational people making settlements because they know everything about the lawsuit.

The main process that leads to this full disclosure is discovery.

Before trial each side must disclose all papers related to the claim and be subject to questioning, under oath, by the other side’s lawyer.

In almost every case, this means that there are virtually no surprises at trial.

Both parties must make a list of all documents that are, or were, in that party’s possession and that are relevant to any matter at issue in the lawsuit. That includes documents that help the other side; you can’t “deep-six” the bad stuff!

The obligation to disclose relevant documents is ongoing. If you come across more documents after you make your list, you have to disclose the new document right away—and that’s true even up to and during trial, whether or not the other side asks for the documents.

The importance of disclosing all relevant documents cannot be overemphasized.

If a document is not disclosed, you cannot (except with leave of the judge) use the document at trial. If you hide a document that is unfavourable, the court may severely penalize you by ordering costs or even by dismissing your case.

Once there is documentary production, each side is subjected to questioning under oath.

The examination for discovery involves the lawyers for each party asking the other party questions relating to the issues in the litigation. The examination takes place before an examiner who transcribes the testimony, so everything is written down.

Generally, the questions cover only issues in the lawsuit, but sometimes questions that go beyond the lawsuit are asked—those questions are properly refused as being irrelevant.

That said, all relevant questions, that are otherwise proper, must be answered, even if they hurt the case of the person being questioned. Everything—the good, the bad and the ugly—must come out.

Discovery is generally not public. Answers given during discovery and documents produced during discovery ought not to be used for any purpose other than the lawsuit.

That allows people being examined to have some confidence that they are not telling their confidential information to the entire world.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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