6. Disclosure / Discovery / Questions

Throughout your case, you must exchange, with the other party all of the relevant documents related to the case and all of the information you have about the case. Trials are not run like card games where you cannot see what anyone is holding. Trials are the opposite. All the cards are on the table and everyone knows everything everyone else knows.

In every lawsuit, each party must be completely open and forthcoming about the information they have. There are two very important reasons for this rule. First, trials must be fair for everyone. Second, settlement is always preferable to trial, and the chances of settling a lawsuit before trial are much higher when each party knows what evidence every other party has.

Discovery is a legal process to obtain information. It means getting access to relevant information the other party has about the case. The basic rule is that you have to let each other know about all of the relevant documents, other records and information that you have that are related to any of the claims either of you has made. This means that if you have a document that is unfavorable, but related to your claim, you must still let the other person know about it. If you do not share the documents you have, the consequences can be serious. For example, the lawsuit could be resolved against you, you could have costs awarded against you or you might not be able to use the document in court.

It is very important that you understand the rules about the kind of documents and information you must exchange. There are three common forms of discovery: disclosure, written discovery (interrogatories) and examination for discovery (sometimes called questioning). The type(s) of discovery allowed in your case will depend on the jurisdiction you are in, and the court your action is in. Check your Rules of Court and with local legal resources for assistance.

You may be required to make a list of all relevant documents in your control and give a copy of your list to the other parties. There is often a specific court form you must use for your document list. If another party asks for them, you must give a copy of these documents to that party and allow them to look at the original document.

Privileged documents

There are some documents that you do not have to share, for example, “privileged” documents. In general, a document is privileged if it contains legal advice from a lawyer you have consulted for this lawsuit. There are other documents that may be privileged. You should speak to a lawyer to see if any of your documents are privileged and do not need to be disclosed.

In certain types of cases, depending on whether allowed by your jurisdiction’s Rules of Court, another party may ask you to reply to a list of questions called interrogatories. Interrogatories are written questions about the case that you have to answer in writing, under oath. Normally, you answer interrogatories by writing and swearing an affidavit.

You must provide your affidavit replying to the interrogatories within a certain number of days according to the Rules of Court.

You can refuse to answer questions that do not relate to a claim in the lawsuit. You can also refuse to answer questions that would require you to give privileged information. If you refuse to answer any of the questions in the interrogatories, you must explain why you are refusing.

When the Rules of Court allow, the parties involved in a lawsuit can make an appointment to ask each other questions under oath or affirmation before trial, at a meeting called an “examination for discovery” (also known as “questioning”). Examinations for discovery are not open to the public, and happen out of court at the office of a court reporter or the office of a lawyer for one of the parties. If none of those are available, you may need to rent a meeting room. A court reporter has special training and is certified by the court or government agency. The court reporter keeps an exact written record of all that is said during the discovery. They do not make decisions about your case.

The court reporter will ask the party who is being questioned to swear to tell the truth, and the party who is asking the questions will begin.

When being discovered, you can refuse to answer questions that do not relate to a claim in the lawsuit. You can also refuse to answer questions that would require you to give privileged information.

The purpose of an examination for discovery is to find out what the other party will say at trial and what evidence they will present to the judge. Examinations for discovery can also be helpful to find out areas of agreement, so the trial can be shorter and focus only on the facts and claims that are in which are in dispute.

What to expect:

• Examinations for discovery often have a time limit by law or by agreement (check your Rules of Court).
• When you examine the other side, you are responsible for making arrangements (room, booking the court reporter, paying the court reporter and the witness fee).
• Most discoveries begin by asking the person to swear or affirm that they will tell the truth. Then they are asked to state their name, address, and occupation.
• You can ask questions about anything relevant to your case.
• The person you are examining is required to bring all of their relevant documents with them to the questioning.
• You can ask questions about documents you present to the other side, or about documents they have included in their list of documents.
• If they cannot answer a question during the discovery, you can ask them to send you the answer by letter (often called an “undertaking”).
• You can also ask the person for the names and addresses of other people who might have relevant information.

You can get the transcript of the discovery of any other party, but generally only the questioning party can use it as evidence in court. But be aware that, depending on the length, these transcripts can be expensive. Therefore, be sure to take good notes while conducting a discovery.

Tips on conducting an examination:

• Prepare: It is a good idea to prepare a script of your questions (and potential follow-up questions) ahead of time and to organize the documents you will be presenting to the witness. Also, make sure you know your facts.
• Ask one question at a time: If you are asking multiple questions at a time, you will not know which question they are answering. It is better to break it down and ask shorter, more precise questions
• Listen: Be sure to listen to the answers. Be flexible enough to deviate from your script to ask follow-up questions when needed.
• Move on: Once the other side has said what you wanted them to say or has clearly answered your question, move on.
• Be courteous: Always be polite to opposing counsel and the person being examined.

Tips on answering questions at a discovery:

• Prepare: Before attending, familiarize yourself with the facts and review all the relevant documents. It is your responsibility to know the relevant facts of your case. In most cases, you will be expected to bring all of your relevant documents and other records with you to the questioning.
• Keep it short: Answer the question asked, and only the question asked, as briefly as possible.
• Be honest: You must answer truthfully. Do not guess. If you do not know the answer, say so. If you don’t remember the answer to a question, say so.
• Stay calm: Do not get upset.
• Be polite: Show respect to opposing Counsel and / or the person examining you.

To Settle: You may gain information about the case the other side will present / answer, and insight about your own case, which will help you to decide what a fair settlement might be. Settlement is always a good option, so you should consider settlement possibilities after receiving disclosure or conducting discovery.

At Trial: Each party can use the documents and information they received from another party at trial as evidence. This includes the answers given in reply to interrogatories and the documents from each party’s list of documents.

You can also use a transcript from an examination for discovery of questions you ask of the other side. You may read into evidence the relevant parts of the discovery transcript of the opposite side as proof of the statement or to challenge the credibility of witness’ statement at trial. For example, if the other side is saying something different at trial than they did at their examination for discovery, you can use the transcript to ask why they are being inconsistent. You must read both the questions and answers from the transcript. Be mindful that any question and answer you read to the court becomes part of your case. So, you should avoid reading in parts of the discovery that are damaging or contradicting to your own case. You cannot read into evidence the answers you gave in discovery – you have to testify about that

Fill out the Examination for Discovery Worksheet before you conduct one so you will not forget to ask any questions you want to ask.

Download the Worksheet 

Go through the worksheet organizing your questions by topic, (e.g. What I need to know about: damage to a home). Questions could include: What was the value of the home before the accident? What was the damage to the property? How much did you pay to contractors to fix the damage? Were you given another estimate from other contractors? (Note: if there is a document you do not have, request it so it is on the record in the discovery.)

Bring this worksheet to the discovery so you can write quick notes in the Response area, and keep track of questions you want to ask and answers that are given.

What I need to know:

Question

Response

Question:

Response

Question:

Response

What I need to know: 

Question:

Response

Question:

Response

Question:

Response

Documents I am requesting: