Examinations for discovery are an essential and critically important part of the pre-trial process. They allow the parties to the lawsuit to gain admissions, prove documents, define the true issues and provide guidance on how to best move the case forward.
There is no dispute that the lawyers for both parties can attend along with the party being examined. However, what of the other party, or parties? What of persons of support or experts?
The Rules of Practice authorizing examinations do not provide the answers. Any guidance must be found in the case law. Further, it must be understood that examinations are private, not public affairs. People get to attend for need, not interest. The need is based on the purposes of an examination which is the efficiency of the process, an unbiased disclosure and the proper representation of the examing party.
The opposite parties have an almost absolute right to attend. They will only be prohibited from attending for a cause. The reasons for such a prohibition are not fixed but historically have been due to the likelihood of intimidation or of tailored evidence.
Intimidation is fairly easy to understand but harder to prove when seeking to exclude a party from attending. It must be more than apprehension and must likely be based on some past conduct.
Tailored evidence is clearly a concern. If the other parties get to see and hear their adversary give evidence the fear is that they can then tailor their evidence when later examined. There is little doubt that evidence given freshly and without such an advantage is more valuable to the other side. That’s why witnesses are excluded at trial before they give their evidence. This concern often leads to a dispute about who can exam first and thereby allow their client to have this advantage.
There is no right for any third party to attend and be present during an examination for discovery unless they are there with the consent of the other parties or with a court-ordered invitation. An invitation will only be granted where it can be shown to the court that the third parties presence is necessary to enable the proper representation of the examing party.
Examinations are extremely stressful. Despite preparation, some parties experience great difficulty getting to and through their examination. Where it is shown that a support person's presence is warranted, they will be permitted to attend. This is usually based on some evidence of anxiety or other symptomology of distress at a higher level than the average person. If so then a friend, family member, etc will be permitted to accompany the witness to allow them to get through the examination.
The right of experts to attend is often consensual. If there is a dispute, their right to attend again depends on the legitimate needs of the examing party. If the subject matter of the dispute is technical or scientific, especially in esoteric and complex matters, the order is likely to be granted. Other examples would be where the expert has made an extensive review of the documents such as an accountant in a financial dispute.
It must be recognized that any expert who attends the examinations is thereby disqualified from testifying at the trial of the matter.
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