Hobbs Giroday
-Litigation Lawyers
About Examinations for Discovery
Examination for Discovery (E. for D.) is a procedure whereby each party is examined under oath before a Court Reporter by the opposing counsel. The Court Reporter transcribes the testimony. Usually present are the Court Reporter, the examining counsel, the person being examined and his/her counsel.
The Purpose of an E. for D. is, generally speaking, two fold:
- To obtain helpful admissions; and
- To find out what the other party’s story is
When being examined for discovery, remember the following principles:
Answer each question as accurately and truthfully as you can but to the point;
Listen carefully to the question you are asked;
Do not give the examiner information which they do not ask for;
You are entitled to explain an answer if the explanation will correct a misapprehension;
If you need to look at a document to answer a question accurately, ask for that document;
Answer the question in your own time;
Answer the question in your own words. Do not be pressed into answering a question yes or no if such an answer is inappropriate or misleading;
Do not guess;
Make sure you understand the question. Answer one question at a time;
Be warned about the problem of being asked to give your recollection of conversations or what you told people. It is not usually possible for anybody to remember a conversation precisely. Do not say “I don’t remember†when in fact you remember the gist but not the exact words of a conversation. You should explain that you cannot remember precisely what was said but then give the gist of the conversation;
If your counsel considers the question inappropriate your counsel will say “I object to that questionâ€. If your counsel says to you “ I advise you not to answer that questionâ€, answer the question by saying “I refuse to answer that question on the advice of my counselâ€;
You should not worry about whether or not your answers are helping or hurting your case. Just answer the question accurately, truthfully and to the point;
It is wise to review the pleadings and to go through the pleadings with your counsel before hand;
Go through all the documents likely to be asked about on E. for D. with your counsel and discuss any troublesome matters arising in the documents; and
It is important that beforehand you go over the opponent’s documents as well as your own.