Step 2-The Discovery Phase: Disclosure of Relevant Documents and Information

This week we will be discussing the Discovery phase of a civil action, focusing on the disclosure of documents, privileged documents, and examinations for discovery.

Once parties exchange pleadings, the Discovery phase begins. Discovery is a period of time in a civil action where each party investigates the opposing party’s arguments, and facts they will use to support these arguments, by obtaining evidence which the opposing party uses to support their case. Each party is required to disclose a list of any and all documents they have in their possession which are relevant to the issues outlined in the pleadings. What amounts to a document is broadly applied and can include many things, including paper documents, recordings, emails and pictures. Documents not classified as privileged (more on that below) will eventually be handed to the opposing party for their review. This disclosure allows each party to narrow their arguments, construct counter arguments, and assess whether there are issues raised during in the pleadings which can be dealt with prior to trial.

Discovery’s main role in a civil action is to allow the opposing party to know the case they are expected to meet and to prevent surprises at trail. To highlight the importance of full disclosure, the Rules of Civil Procedure generally do not permit a party to rely on evidence/information from documents which was not disclosed during Discovery.

There are a few reasons why a document isn’t disclosed during Discovery; a common example being that the document is privileged. Often documents listed as privileged are connected with the giving or receiving of legal advice between a party and their lawyer. The law recognizes that such communications must be protected from disclosure to maintain a secure trust based relationship between a party and their lawyer. While the existence of a privileged document must be disclosed and specifically labelled as privileged in the list of documents in a party’s possession, the privileged documents are not provided to the opposing party.

In addition to the disclosure of documents, the Discovery phase also includes examinations for discovery, during which parties are entitled to question the opposing party under oath, though not before a judge. During examinations for discovery parties will be asked questions relevant to the issues in the civil action, and are expected to answer these questions honestly and to the best of their knowledge. These examinations serve a similar purpose as disclosure of documents, allowing each party to hear the arguments and facts which they will have to meet at trail. Now that we have discussed how a party’s arguments and evidence are developed and disclosed through Discovery phase, next week we will turn to the topic of motions and summary judgments.

If you would like to discuss a potential civil action, our team of experienced litigators can help. Contact us online for a free legal consultation or call 705-526-1471 to speak directly with one of our lawyers.