PRACTICE CHECKLISTS                                                                            EXAMINATIONS FOR DISCOVERY

                                        EXAMINATIONS FOR DISCOVERY

This checklist is designed only to serve as a guideline for counsel in preparing both themselves and their
clients for examinations for discovery. Several of the items in the list should be regarded only as
suggested practices. Circumstances will inevitably vary from case to case, and from client to client, that
will cause counsel to depart from and/or supplement some of the suggested practices. In addition, counsel
will find they will develop their own methods and strategies. The key point is preparation including
detailed review of documents and a game plan as to what it is one seeks to accomplish at the examination:
what issues are raised by the pleadings? What needs to be established to prove your case at trial or
disprove the allegations made by the other side? Are there documents that require authentication? Is there
evidence that you need from the other side in order to prove your case in chief? These are the types of
questions counsel ought to be asking him or herself long before the discovery. The discovery is more than
a fact finding exercise. Counsel must realize, especially counsel for the Plaintiff, that the discovery may
be the only opportunity to ask the other side questions as there is no certainty that any party or witness
will testify at trial. One should not assume that the matter will be settled at the pre-trial. On the contrary,
one should treat the discovery with the same rigor as if the matter is expected to proceed to trial.

                                                    LIST OF AUTHORITIES
Discovery of Documents in Saskatchewan (2003), Saskatchewan Bar Admission Course.

Examination for Discovery (2003), Saskatchewan Bar Admission Course.


A.       Examination of Opposing Party................................................................................................L-1-2
B.       Examination of Client ...............................................................................................................L-1-4
C.       Disclosure and Production of Documents.................................................................................L-1-6

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EXAMINATIONS FOR DISCOVERY                                                     PRACTICE CHECKLISTS


1.      Determine appropriate time for examinations (e.g., until
        disclosure and production of documents, availability of party to
        be examined, etc.) Consider whether there is any advantage to
        your client being present during the other party’s examination.

2.      Determine parties to be examined, as it may not be necessary to
        examine all parties adverse in interest. Cost of examinations is
        an issue. Clients must realize they may face an expense of up to
        $1,000/day for court reporting costs alone. Consider if conduct
        money is an issue.

3.      Identify proper officers to be examined on behalf of partnerships,
        corporate parties or Crown:

        3.1     Consider execution of agreement as to proper officer.

        3.2     In complicated cases, consider an agreement to examine
                more than one officer so as to avoid undertakings. In
                light of the Rules, this can only be done by agreement. If
                proceeding down this path, then have an agreement as to
                the exact responsibilities of each witness so that counsel
                cannot follow up with one witness what was missed with

4.      Consider whether it would be appropriate to conduct
        examination of past officer, and note that it is not binding unless
        parties agree otherwise.

5.      If necessary, serve Appointment for attendance at examination
        for discovery, along with sufficient conduct money. This should
        be a last resort as one should consider schedule of opposite
        counsel as a matter of courtesy.

6.      Prepare list of factual issues which must be determined at trial.

7.      Prepare list of facts your client will wish to establish at trial.
        Consider what evidence you need from the other side to prove
        your case, to avoid having to rely upon eliciting the evidence at
        trial from the other side. Note that the other side may not call the
        witnesses you anticipate or any witnesses at all depending on the
        circumstances. Those acting for the Plaintiff should pay special
        consideration to this.

8.      Prepare outline of examination topics.

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PRACTICE CHECKLISTS                                                      EXAMINATIONS FOR DISCOVERY
9.       Prepare questions:
         9.1    Keep questions relatively short and direct.

         9.2     Avoid multi-question questions.

         9.3    Avoid convoluted questions.
         9.4    If using written questions, avoid being unnecessarily tied
                to those questions.

         9.5    Design and word questions to obtain desired admissions.
                Admissions must be clear and capable of being read in at

         9.6    Note: Sometimes counsel are concerned that they may
                give away their concerns or case by asking certain
                questions. There are two schools of thought. One says
                that you might as well ask the question and get the bad
                news over with early and uncover any dirt if it is there.
                The other holds that it is best not to ask questions which
                may alert the other side, asking only absolutely
                necessary questions for your case. At discovery, it is
                likely best to adopt the first school. At trial, the second is
                likely more advisable.

10.      Conduct of examination for discovery:

         10.1   Seek undertakings where information or document
                cannot be supplied at examination.

         10.2   Have necessary documents identified and marked as
                exhibits. When marking as an exhibit, be sure to
                establish all necessary elements of proof so document
                can be entered at trial from questions and answers.
                Confirm that copies may be used as if originals.

         10.3   Maintain list of exhibits.

         10.4   If opposing counsel objects to question, ensure question
                is stated clearly for the record.

         10.5   Consider conducting an examination of allegations in
                pleadings and their basis.

         10.6   If the response is convoluted, then go back and break
                down the question and answer so as to make the
                responses capable of being read in at trial. Take your
                time and be certain to obtain what you need.

         10.7   Once you have your admission, move on. Do not allow
                witness to qualify response.

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EXAMINATIONS FOR DISCOVERY                                                     PRACTICE CHECKLISTS
        10.8    Consider inquiring about statements as to documents and
                documents which ought to be produced but are not.
                Inquire as to basis of any privilege claimed. Insist on
                itemization of privileged documents.
        10.9    Adjourn examination sine die subject to responses to
                undertakings and any questions or documents which
                may arise from the same, or any other limitations you
                see fit. Do not close, if there are outstanding issues.

11.     If witness is proper officer of partnership, corporation or Crown,
        and has not satisfactorily informed himself or herself of matters
        in issue, consider application to examine another officer: Rule

12.     Prepare memorandum summarizing              evidence     given    at
        examination for discovery.

13.     Send letter to opposing counsel confirming undertakings given
        by his or her client. Do not solely rely on summary put together
        by the court reporter as it could be inaccurate or not complete.

14.     Consider application for order permitting examination of non-
        party, if circumstances permit: Rule 222A.

15.     Consider application to compel responses to questions objected
        to. Make it part and parcel of any other application you may
        have to save cost such as for production of documents.


1.      Identify proper officers to be examined on behalf of partnerships,
        corporate parties or Crown.

        1.1     Consider execution of agreement as to proper officer.

2.      Confirm scheduling of examination for discovery with client by

3.      Write to client, again confirming time, date and place of
        examination for discovery, with advice as to general nature of
        what can be expected at examination for discovery.

4.      Meet with client to prepare for examination for discovery:

        4.1     Explain nature of examination for discovery and roles of
                everyone in attendance. Advise client that it is not a trial
                and that no judge will be present.

        4.2     Review pleadings with client, advising that questions
                may be asked as to facts supporting allegations set out in

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PRACTICE CHECKLISTS                                                    EXAMINATIONS FOR DISCOVERY
         4.3     Ensure that client is familiar with all produced
                 documents and issues raised by those documents.

         4.4     If time line of relevant events is important, prepare
                 chronology and ensure that client agrees with and is
                 familiar with chronology.

         4.5     Consider rehearsing specific questions anticipated from
                 opposing counsel.

         4.6     Impress on client that examination is being conducted
                 for benefit of opposing party, and describe consequences
                 of discrepancy between evidence at examination and

         4.7     Insist that client informs himself or herself as to matters
                 that may not be within personal knowledge, particularly
                 if witness is proper officer being examined on behalf of
                 partnership, corporation or Crown.

         4.8     Advise client to confine responses to questions asked
                 (avoid long rambling answers, speculation, guessing).
                 Warn client about agreeing to matters which are
                 proposed by counsel during questioning. The witness
                 ought not be pressured into agreeing unless he or she is
                 certain that the proposition is in fact correct.

         4.9     Advise client not to answer any questions to which you

         4.10    Warn client that you may re-examine them at the end of
                 the other lawyer’s examination.

5.       Anticipate objectionable questions and assess grounds upon
         which objection could be made.

6.       Conduct at examination of client:

         6.1     Listen to every question very carefully for consideration
                 of possible objection.

         6.2     Assist client in retrieval of documents necessary to
                 answer questions.

         6.3     Ensure that awkward, incomplete or convoluted
                 questions are made more understandable before witness

         6.4     Limit questions to matters of fact as opposed to opinion
                 or speculation. There is authority which states however
                 that if the witness is established as being an expert in an
                 area, opinion questions may be proper.

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EXAMINATIONS FOR DISCOVERY                                                     PRACTICE CHECKLISTS
        6.5     Give undertakings only to extent that client can
                reasonably comply with them. It is preferable that the
                client give undertakings only after approved by counsel.

        6.6     If you are not certain whether to agree to the
                undertaking, it is in order to take the same “under
                advisement” and respond later as to your position. It is
                not in order however to simply take all undertakings
                “under advisement.” An undertaking treated as such is
                taken as a refusal in the first instance.

        6.7     Insist that opposing counsel close his or her exam
                subject to any undertakings given by your client.

7.      Prepare memorandum summarizing evidence given at discovery.

8.      Attend to gathering of information and documents necessary to
        comply with undertakings.

9.      Do not rely upon court reporter’s summary of undertakings.
        Review undertakings given and ensure they are exactly the same
        as the court reporter’s summary. Correct summaries if warranted.

10.     Involve client in responding to undertakings, to ensure there are
        no surprises on examination of responses. Note that the
        undertakings are the client’s and not the lawyer’s. As such, the
        client must accept the responses being provided on his or her

11.     Conduct a follow-up examination of the other side’s responses to
        undertakings, if necessary. Again consider cost and whether


*Please note, this checklist is designed only to serve as a guideline for
counsel to use in fulfilling their obligations to disclose and produce their
client’s documents in a civil action, and in determining whether opposing
counsel have properly fulfilled their obligations. As complete as this
checklist tries to be, it does not likely contemplate every possible
situation or circumstance.

1.      Gather up and collect all “documents” that may relate to matter
        in issue in action. Do not rely on client’s judgment as to what
        document is “related”; meet with client and client’s agent and
        review documents personally.

2.      Identify each document with specific description.

3.      Set aside documents which will be withheld from production and
        identify reason for withholding.

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PRACTICE CHECKLISTS                                                 EXAMINATIONS FOR DISCOVERY
4.       Prepare Statement as to Documents:
         4.1    Description of each document should identify maker,
                document type, date and person for who document was
         4.2    It is not necessary to identify documents comprised of
                letters between counsel unless they contain relevant
                information such as an admission or an offer (in which
                case it is listed as privileged). The exception may be in
                situations where there are more than two counsel,
                especially when one is not a party to the correspondence.
         4.3    Number of document in Statement should appear on, or
                be attached to, document being produced.

         4.4    Identify accompanying enclosures separately.
         4.5    Set out sufficient description of documents being
                withheld from production on ground of privilege without
                negating the privilege being claimed so that counsel
                opposite may have an opportunity to examine the claim.

5.       Prepare Supplementary Statements as to Documents as may be

6.       Serve and file Notice to Produce Documents: Rule 213.

7.       Review opposing parties’ Statements as to Documents,
         considering the following questions:

         7.1    Is it complete or are there obvious omissions?

         7.2    Are documents withheld from production properly
                described so as to understand grounds for withholding?
         7.3    Are grounds for withholding production properly set
                out? Inquire either prior to or at the time of the
                examination for discovery.

         7.4    Can grounds for withholding production be subject to
                challenge? Consider motion to compel production if
                grounds not valid following examinations for discovery;
                although challenge may be brought at any time including
                immediately prior to trial or at trial.

8.       Application for further and better Statement as to Documents (if
         necessary): Rule 215.

9.       Make arrangements to inspect and/or obtain copies of opposing
         parties’ documents. On large productions, arrangements may be
         made to have documents photocopied at a professional printer to
         save costs.

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L-1-8                                        9/2006

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