Discovery

Question 1

What information MUST each party disclose to one another without being asked? And what’s the timeframe for doing so?

Answer 1

The following information must be discloses within 14 Days of the Rule 26f Conference:

— Identities of people who have discoverable information you may use to support your claim or defence

— Documents and things you may use to SUPPORT your claim or defence

— Computation (if seeking monetary relief)

— Insurance Coverage

Question 2

What happens if you fail to disclose material that must be provided to the other side within 14 Days of the Rule 26 Conference?

Answer 2

You cannot use it during trial.

Question 3

The court will require parties to disclose certain information about the expert witnesses they intend to rely on in trial. What info about the experts must be disclosed to the other side?

Answer 3

(1) Identity of expert
(2) Written report prepared by expert, which must include:

— Opinions expert plans to express
— Basis for opinions
— Facts used to form opinions
— Their Qualifications 
— Their Fees

Question 4

Can the other side depose your expert?

Answer 4

Yes, by serving them with a subpoena

Question 5

If you fail to disclose the necessary info about your expert, what are the consequences?

Answer 5

You cannot use them during trial.

Question 6

What further information must the parties share with one another before the trial? And state the timeframe for doing so.

Answer 6

No later than 30 days before trial, parties must share detailed information about their trial evidence, including:

— Identity of witnesses that are testifying live it by deposition
— Documents/electronic evidence to be introduced

Question 7

When can request for discovery be sent?

Answer 7

After the Rule 26f Conference

Question 8

Who can be deposed and how?

Answer 8

Either a party or a non-party, but need to subpoena the non-party

Question 9

How can deposition be used at trial?

Answer 9

To impeach

For any purpose if the deposed person is an adverse party

For any purpose if the deposed person is not unavailable (irrespective of whether they were a party)

Question 10

Are depositions conducted under oath?

Answer 10

Yes

Question 11

Against whom can you issue interrogatories?

Answer 11

Only parties to the case

Question 12

What are interrogatories?

Answer 12

Written questions made under oath by another party to the case.

Question 13

How long do you have from service of interrogatories to respond?

Answer 13

30 days from service to answer or object.

Question 14

Can you respond to an interrogatory by saying you don’t know the answer?

Answer 14

You must respond with answers reasonably available to you.

Question 15

What is a request to produce and if you serve it on the other side, how long do they have to answer?

Answer 15

This is where you ask someone to make available for review or copy documents, electronic materials etc.

The person must respond in writing within 30 days of service, stating they will produce or stating their objections.

Question 16

Who can be served with a request to produce?

Answer 16

A party. But you can get the same information from a non-party by serving them with a subpoena.

Question 17

How can you arrange that a party have a medical exam?

Answer 17

You need to obtain a court order by showing that (1) the person’s health is in ACTUAL CONTROVERSY; and (2) good cause.

Question 18

Can a person claim that a medical examination is unnecessary because they’ve previously been examined by a licensed professional?

Answer 18

No, the party cannot avoid examination this way.

Question 19

Can the person examined obtain access to the medical report produced?

Answer 19

Yes, but you then run the risk of:

— Having to produce your own prior medical reports about the condition

— And in doing so, you waive any doctor-patient privilege with regard to the condition

Question 20

What is a Request for Admission?

Answer 20

Served on a party (only) and it’s a written request for the other side to admit to something.

Question 21

How long does the other side have to respond to a Request for Admission?

Answer 21

Must respond in writing within 30 days of service, either denying or objecting (otherwise you’re deemed to have admitted)

Question 22

Is substantive information provided by a party as part of the discovery process made under oath?

Answer 22

Yes, where signed.

Question 23

What happens if the circumstances change, rendering your earlier discovery incomplete or incorrect?

Answer 23

You must supplement your response (even if the other side doesn’t ask).

Question 24

What information can be discovered?

Answer 24

Anything relevant to a claim or defence

And proportionate to the needs of the case

That is not protected by privilege

Question 25

Do you have to produce, as part of discovery, inadmissible evidence?

Answer 25

Yes, discovery is broader than admissibility

Question 26

Information covered by the Work Product Doctrine is not discoverable. What is the scope of Work Product?

Answer 26

Information made by a party or a representative of the party is not discoverable if it’s made in ANTICIPATION of LITIGATION

Unless the party request in discovery can show SUBSTANTIAL NEED and UNDUE HARDSHIP.

Question 27

What is Qualified Work Product?

Answer 27

Information with the opposing party can show a substantial need for it; and

It is not otherwise available

Question 28

When can a party move for a protective order to object to discovery?

Answer 28

If that party thinks that the discovery was subject to:

– annoyance

– embarrassment

– undue burden

– under expense

But must show that they tried in good faith to work it out with the other side before applying to court.

Question 29

A court can grant a protective order the effect of which is what?

Answer 29

The order can:

– deny discovery

– limit discovery

– permit discovery on specified terms

Question 30

If the responding party does not fully answer the questions in discovery what can the other side do?

Answer 30

The requesting party may make a motion to compel answers and the court then decides whether the responding party’s objections are legitimate

Question 31

What is the pre-requisite to getting costs attorneys fees and/or sanctions imposed against the counterparty for failing to comply with discovery?

Answer 31

You must certify that you tried in good faith to get the information without court involvement (the “Meet and Confer” Rule).

Question 32

If a party ignore an order compelling them to fully answer discovery question, what award might the non-breaching party obtain?

Answer 32

Costs, attorney’s fees and “merit” sanctions.

Question 33

If a party completely fails to respond to discovery, what steps can the court take?

Answer 33

— issue an Establishment Order

— Strike Pleadings

— Disallow evidence

Or, if bad faith is show:

— Enter default judgment
— Dismiss that party’s case

Question 34

If you fail to put in place a litigation hold and lose documents relevant to the case, the court can do what?

Answer 34

Order measures to cure the harm caused by your failure.

But the court cannot make adverse findings unless the party sought to intentionally deprive you of the material.