The Do’s and Don’ts of Examination for Discovery: Refusals Edition

[5] Plaintiff’s counsel is not a litigation lawyer. She was retained by the plaintiffs “as a favour” because they all speak Serbian. This was plaintiff’s counsel’s first examination for discovery of her career. It is her evidence that she was not obstructionist. In her view, she was simply attempting to protect Tondera, whose deceased grandfather was found, based on documents notarized by the defendant Dorothy Fox (“Fox”), to have died intestate. The grandfather had held property in Montenegro which, according to the plaintiff, was allegedly transferred based on fraudulent documents.

[6] Her further evidence is that because Tondera kept saying “I guess” or “I don’t remember” counsel was following up her client’s evidence by asking “Do you know?, to ensure that the transcript would be clear. Counsel also objected to the repetitive nature of defence counsel’s questions. Plaintiffs’ counsel asserts that the examination for discovery was improperly terminated. It is her submission that the examination should have continued and thereafter the defendants could have moved on the refusals, if they chose to do so.

[8] Rule 34.14(1) states that an examination may be adjourned when there are improper interruptions, when the examination is being conducted in bad faith, when the party being questioned is unresponsive or when there are improper refusals to produce documents. Master Dash in Madonis v Dezotti 2010 ONSC 2180 (CanLII), 2010 ONSC 2180 details a set of principles for proper conduct at an examination. They may be summarized as follows:

(a) An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions.

(b) The lawyer for a party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party, either to not answer or, to answer under objection.

(c) The lawyer for the party being examined may interrupt the examiner if necessary to ensure that the witness and counsel understand the question.

(d) It is the party who is being examined and not his other lawyer.

(e) There is often a spirit of co-operation at an examination for discovery where counsel allow some latitude and permit the lawyer for the witness to offer assistance.

(f) It is the duty of the party and not the lawyer to correct an answer given even if the answer given by the party is wrong.

(g) Counsel must not communicate with his or her client during the examination except on the record and even then, only sparingly so as not to interfere with the flow of the examination.

[9] As Case Management Master, I have had some history with this action. In my view, much of the difficulty thus far in this action stems from plaintiff’s counsel’s lack of familiarity with the litigation process. As opposed to finding her behavior obstructionist, I find it obtuse, but with good intention – that being to protect her client. Plaintiff’s counsel has, throughout the proceedings, been not only critical, but also suspicious of defence counsel. Defence counsel, in response, has taken a particularly hard line.

[10] Plaintiff’s counsel clearly failed to accept the relevance of the questions asked to the claim and/or to the defence. She should have simply refused to answer the questions. If she was of the view that there was duplication, or multiple confusing questions which I believe there were, she should have simply stated on the record that the question has already been asked and answered, leaving it to a Master on a motion to determine whether the questions are proper. An experienced litigation lawyer would have done so.

[11] There is a clear distinction to be drawn between questions refused on an examination and improper conduct. Although plaintiff’s counsel’s interruptions were annoying, I find them to be based on lack of experience and her feeling of necessity to be overly protective. She was instructing her client to answer questions truthfully based on her recollection. Perhaps her demeanour was somewhat aggressive rather than particularly civil. The Principles of Civility provide lawyers with some guidance in litigation where it is stated that “counsel, during examinations for discovery, should at all times conduct themselves as if a Judge were present”. I do not find based on the principles outlined above, that there has been improper conduct on the part of plaintiff’s counsel.

[12] As Tondera’s examination is incomplete, it is ordered that Tondera shall re-attend for her examination. In an effort to assist the parties to keep this action moving forward, I will make myself available by telephone at the re-attendance of Tondera’s examination for discovery and at the examination of Maryon Tondera, to make rulings on questions in ‘real time’. All counsel are urged to operate with a spirit of co-operation! This action is crying out for resolution so the sooner the parties can get through the discovery process to reach a mediation or pre-trial, the better all parties will be served.

[13] With respect to costs, each party shall bear their own expense for costs thrown away and for costs for re-attendance and for costs of this motion. None of the parties’ hands are completely clean. [emphasis added]

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2 Responses to “The Do’s and Don’ts of Examination for Discovery: Refusals Edition”

  1. Chris Jaglowitz (@chrisjaglowitz) Says:

    Wow. Is that decision for real, or did you make it up in a frenzy of creative writing?

  2. Just Say No! (To Refusals Motions) | THE TRIAL WARRIOR BLOG Says:

    […] The Do’s and Don’ts of Examination for Discovery: Refusals Edition (thetrialwarrior.com) […]

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