Weilers LLP

What Is An Examination for Discovery

What Is An Examination for Discovery

March 12, 2024

By Jonathon Clark 

After pleadings are exchanged in a civil litigation action, the next step in the litigation is to schedule examinations for discovery.

An Examination for Discovery is an oral examination under oath, which would be held with a Court Reporter present, at which time each lawyer involved has an opportunity to ask each opposing party questions dealing with the issues of litigation. Each party is examined separately. It is held in a boardroom, not at court. No judge is present, but the evidence is recorded, and may be transcribed. Evidence is given under oath. The purposes of discovery are to learn about the opponent’s case (avoiding surprise) and obtain admissions. If the evidence at trial does not match the discovery evidence, the discovery evidence may be used to attack credibility. The other hope is that once the facts are better understood, the parties are more willing to be realistic about settlement.

Prior to the examinations for discovery, the parties exchange documents, supported by an Affidavit of Documents, which is a list of all the relevant documentation in each party’s possession, which relate to this lawsuit.

Failure to disclose documentation can result in various sanctions:

  1. cross-examination on the Affidavit of Documents
  2. an Order for a further and better Affidavit
  3. an Order for the production of documents
  4. an Order that documents not disclosed may not be used at trial, if favourable to the party’s case
  5. any other penalty considered just by a Judge, including, in extreme cases, dismissal of a claim or defence.


Your lawyer will draft an Affidavit of Documents on your behalf, consisting of the documentation provided by you to date, and will provide you with a copy to review. The process continues with you reviewing your records. You must disclose all documents in your possession or control, or which you have the power to obtain. You have an obligation to preserve relevant documents. Please take special care to ensure that electronic files are preserved.

If you have any additional documents not on the draft affidavit, identify and preserve them and provide your lawyer with a list.

The word “documents” is defined broadly, to include sound recordings, videotape, film, photographs, charts, maps, graphs, plans, books or electronically stored information. This would include files and data stored on computers, laptops or PDAs, including word processing, spreadsheets, databases, e-mails, accounting files, instant messages, or voicemail records.

If there are documents, which were in your possession or control, which you no longer have, your lawyer needs a separate list of those documents, together with an explanation of their disposition.

The examination for discovery is an important stage in a lawsuit. You are better off represented at discovery by serious lawyers. At Weilers LLP we are serious about each client’s case and bring our experience and knowledge to the examinations to advance your case.

We are not afraid of hard cases. We like a challenge. If you value efficiency and effectiveness, Weilers LLP may be the right lawyers for you.