If you have started a lawsuit in BC for a personal injury, a denied long-term disability or other denied insurance claim, an employment law matter, or any other civil dispute, you will almost certainly have to attend an examination for discovery. Most clients have never been examined under oath before. The process is uncomfortable, exhausting, and consequential and it can be helpful to have a better understanding of the process before you have to participate in one.
What an Examination for Discovery Is
An examination for discovery is a formal pre-trial proceeding where one party’s lawyer questions another party (or a representative of a corporate party) under oath. In BC Supreme Court, discoveries are governed by Rule 7-2 of the British Columbia Supreme Court Civil Rules.
The purpose of discovery is threefold. First, to find out what evidence the other side has and what their witnesses will say at trial. Second, to lock down that evidence so it can be used at trial if the witness later changes their story. Third, and sometimes most importantly, to assess credibility and identify weaknesses that can be exploited at trial or in settlement negotiations.
Discoveries do not happen in a courtroom. There is no judge. But everything you say is under oath, recorded by a court reporter, and becomes part of the formal record of the case. If you say something at discovery and then say something different at trial, defence counsel will use the discovery transcript to impeach you.
When Discovery Happens
Discoveries usually take place months or years into a lawsuit, after the pleadings are complete and after both sides have exchanged their initial document productions. In a typical BC case, you can expect to be examined somewhere between 12 and 24 months after the lawsuit is filed, but there is no hard and fast rule, or approach. Sometimes the facts of the case or the tactics employed by your counsel might make waiting years before an examination for discovery the right step to take. In other cases, examination for discovery can take place quickly after filing the lawsuit.
The defence sets the date for your examination for discovery in consultation with your lawyer. You generally have to attend on the date that is set unless there is a genuine conflict. Refusing to attend without a good reason can result in court orders against you and ultimately the dismissal of your claim. Usually your lawyer will choose to have the examination for discovery of the Defendant, or the Defendant’s representative on or near the same day your examination for discovery takes place.
Who is in The Room?
Examinations for discovery now commonly happen over video conferencing as well as in person. A typical examination for discovery includes:
- You, as the witness being examined;
- Defence counsel, who will be the lawyer asking the questions. In a personal injury case this is usually counsel retained by the defendant’s insurer. In an employment case, it is the employer’s lawyer. In an LTD case, it is the insurer’s lawyer.
- Your lawyer, who will be sitting beside you or on the video conference with you. Their role is to make objections where appropriate, to protect you from improper questions, and to ensure the record is accurate. They are not allowed to coach you on individual answers however;
- The court reporter who is a neutral professional who records every word said and produces a transcript afterwards; and
- Sometimes other parties. For example in multi-party cases, other defence lawyers may attend and may be entitled to ask their own questions.
Where It Happens
Where your examination for discovery happens depends on where you are. In the lower mainland of BC, examinations for discovery usually take place at the office of the court reporting service. The setting is professional but informal. You sit at a table. There is water available. Breaks are taken regularly. Lunch is usually a one-hour break in the middle.
If court reporting services are not available, it is common to have examinations for discovery take place in the boardroom at the office of one of the involved lawyers, or at any other suitable office setting.
Many discoveries are now conducted by video conference rather than in person. Post-pandemic, this has become standard for many BC firms. The format is similar but you attend from your lawyer’s office or sometimes from home with your lawyer joining you. In-person attendance can be requested for cases where it is strategically important.
How Long It Takes
Under Rule 7-2, discovery of a party in a fast-track action (claims valued under $100,000 or expected to take three days or less of trial time) is limited to two hours. In ordinary actions, discovery is limited to seven hours per party, though this can be extended by agreement or court order.
In practice:
- A simple personal injury case usually takes half a day to a full day.
- A more complex personal injury case with multiple injuries or significant wage loss can take a full day or longer.
- An denied disability or denied life insurance case usually takes a full day.
- A wrongful dismissal case often takes a half day to a full day.
- A complex commercial or estate matter could take multiple days, sometimes spread over weeks.
You should plan for it to take longer than your lawyer estimates. Discoveries that “should” take three hours regularly run six.
What Questions Get Asked in Discovery
At an examination for discovery, the opposing lawyer is given broad latitude to ask questions about any non-privileged matter that relates to the issues in the lawsuit. That is broader than what may ultimately be admissible at trial. You should expect detailed questions about your background, the events leading to the claim, what happened, what you did afterward, your documents, your communications, your damages, your work history, your finances where relevant, and your social media or other digital footprint. The purpose is not just to gather information, but also to test your memory, credibility, consistency, and the strength of your claim.
Many questions are open-ended or framed in a way that invites you to agree with an assumption, speculate, over-explain, or adopt the other side’s version of events. The best approach is simple but important: listen carefully, pause before answering, answer only the question asked, do not volunteer extra information, do not guess, say “I do not know” or “I do not recall” when that is true, ask for clarification if you do not understand the question, and do not argue with opposing counsel. Discovery is not the place to win the case. It is the place to give accurate, careful, truthful evidence. A witness who is honest, disciplined, and precise will usually do far better than one who tries to explain too much or outsmart the process.
What to Wear and Bring
Dress as you would for a job interview. Business casual is appropriate. You do not need a suit but do not show up in athletic wear.
If you use any aids (cane, brace, hearing aids, glasses), bring them. If you take medications during the day, bring them and take them on your normal schedule. Bring a list of your current medications. Bring identification.
Eat before you arrive. Bring snacks if you have dietary needs. The court reporter will provide water.
Tell your lawyer about any accommodation needs in advance: breaks for medication, breaks to rest, breaks for cognitive fatigue. These can be arranged.
Examining the Defendant: The Other Side of Discovery
One part of the discovery process that is often overlooked is that it does not only run in one direction. The other side may have the right to examine you, but your lawyer may also have the right to examine the defendant, a corporate representative, an insurer representative, an employer representative, or another person who can speak on behalf of the opposing party. This can be one of the most important parts of the case. Your own discovery is usually focused on testing your evidence. The other side’s discovery is often where your lawyer can test their evidence, lock in their version of events, explore how key decisions were made, and find out whether the documents produced tell the whole story.
This matters because what a party says at discovery can be used later in the case. If their evidence changes, the transcript may be used to challenge their credibility. If their answers reveal missing documents, gaps in the investigation, inconsistent explanations, poor record keeping, or a decision-making process that does not hold up under questioning, that can significantly affect settlement discussions and trial strategy. You will not usually attend the opposing party’s discovery yourself. Your lawyer conducts it on your behalf. But the answers given under oath become part of the evidentiary record and can sometimes be more valuable than your own discovery transcript. A good examination for discovery is not just about asking what happened. It is about carefully testing the other side’s position before trial, narrowing the issues, and forcing them to commit to the evidence they intend to rely on.
After the Examination for Discovery
The examination for discovery does not end when the questioning stops. A transcript is usually prepared afterward. Once it is available, you should review it carefully with your lawyer. The transcript is meant to record the questions asked and the answers given, but errors can happen. You may have the opportunity to correct mistakes or clarify answers, but this should be approached carefully. Minor corrections are usually straightforward. Significant changes can create credibility issues and may be used by the other side later. If something in the transcript concerns you, raise it with your lawyer before making any changes.
There may also be undertakings to deal with after discovery. An undertaking is a commitment made during the examination to provide further information, produce a document, or follow up on something that could not be answered fully at the time. These undertakings are part of the discovery process and need to be tracked and answered properly. Your lawyer will usually manage this process, but you may be asked to help locate records, confirm facts, or provide additional information.
The discovery may also affect settlement. After the examination, the other side will assess not only the answers given, but also how the witness presented. Were the answers consistent? Did the evidence make sense? Was the witness careful, credible, and fair? A strong discovery can move a case closer to settlement because it gives the other side a clearer picture of the risks they face. A poor discovery can also move a case toward settlement, but often at a lower value because it may give the other side arguments about credibility, causation, damages, or proof.
If the case goes to trial, the discovery transcript remains important. Opposing counsel will have reviewed it closely. If your evidence at trial differs from what you said at discovery, that inconsistency may be put to you in cross-examination. This is one reason discovery preparation matters. The evidence you give at discovery can become the foundation for the rest of the case. It helps shape settlement discussions, trial preparation, and the way the parties assess risk. A careful, truthful, and disciplined discovery usually makes the case easier to advance. A careless discovery can create problems that are difficult to repair later.
Experienced Vancouver Lawyers
A discovery is not a conversation. It is a formal proceeding where the other side is gathering evidence to use against you. Approach it with seriousness. Prepare properly. Be honest, be disciplined, be brief. Trust your lawyer to handle the legal mechanics and focus on giving accurate testimony.
If you have a discovery scheduled and you have questions about how to prepare, or if you are considering starting a lawsuit and want to understand what the process will look like, contact the offices of Taylor & Blair LLP for a consultation.