Thursday, July 12, 2012

The Right to Re-Examine Your Client on Discovery

     I can not count how many times I have sought to exercise my right to re-examine my client at a discovery only to be confronted by friendly and sometimes not so friendly resistance and a demand for authority for this right.  Surprisingly, most defence counsel that I have encountered in civil litigation in this jurisdiction are oblivious to this right provided by Rule 34.11(1) of the Ontario Rules of Civil Procedure.

     The right to re-examine on discovery is similar to but arguably broader than the right to re-examination in a trial setting.  While re-examination at trial is dependent on and limited to the content of the cross-examination, the right to re-examination on an examination for discovery should intuitively be broader for two reasons.  The first reason deals with the purpose and objective of discovery, namely, fact-finding.  It would be inconsistent with this objective to allow a party to limit its examination to those points which assist its case and effectively foreclose the other party's right or ability to bring out all of the relevant facts at the first opportunity to do so. The evil in such an approach is amplified by the fact that the Rules provide for the reading-in of another party's evidence from discovery at trial.  A proper re-examination can effectivly nullify any admission or gain by your oppent because you could argue that your opponent must read-in the entire examination. Accordingly, it is unlikely that your opponent will attempt to read-in at all.  The second reason flows from the fact that unlike trial you would not have had an opportunity to conduct an examination-in-chief on your client.

     Not surprisingly, there does not appear to be a wealth of cases touching on the scope of re-examination in discovery.  The one case I was able to find - Roumeliotis   v.   David 2004 CanLi 172093(Ont.S.C.) suggests that the proper scope of re-examination in the discovery context is limited to expanding and claryfying testimony from the other party's examination.  It is my sense that this holding may well be limited to the specific facts of that case.  In that case - which was a personal injury case - there appeared to be a single theory of liability or cause of action advanced.  In cases involving multiple theories of liability or causes of action that holding would arguably tend to be inconsistent with the over-all policy of seking the most cost-effective way of resolving disputes. In my experience the sooner the parties get to know the full extent of the case they have to meet the greater the chances of settlement. Hence, allowing a party to tell their full story can not hurt.  That party can not read-in its own evidence at trial.

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