USES OF EXAMINATIONS FOR DISCOVERY ) These materials were prepared by Richard Danyliuk,of McDougall Gauley law firm Saskatoon, Saskatchewanfor the Saskatchewan Legal Education Society Inc. seminar, ~aximizing Opportunities: Using Examinations for Discovery Effectively; May 2004.
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USES OF EXAMINATION FOR DISCOVERY This paper will deal with the uses to which information garnered at Discovery can be put. It will cover the following: 1. Purpose of Using the Examination 2. Reading in at Trial 3. Impugning Credibility 4. Other Proceedings 1. Purpose of Using the Examination The purpose underlying the use of information obtained through the Discovery process mirrors that of the Discovery itself. One should use the information to strengthen or bolster one's own case, or weaken that of the opponent. Obviously, one should not use this information to damages one's own case. this is what actually happens in a substantial number of trials. Yet 2. Reading in at Trial (a) General Rule 239 is applicable. It allows read-ins, and states: Any party at the trial of an action or issue, or upon any application or motion therein, may subject to all just exceptions, use in evidence any part of the examination of the opposite party without putting in the whole examination, and subject to the provision of Subrule (3) of Rule 223 he may so use any part of the examination of a designated officer of a 1
corporation which is adverse in interest; but the other party may request the judge to look at certain designated parts of the examination which may explain those portions of the examination so put in, and if the judge is of the opinion that any other part is so connected with the part put in that the last mentioned part ought not to be used without such other part or parts, he shall forthwith, or in his reasons for judgment, direct such other part or parts to be put in by way of explanation but not as part of the evidence of the party putting in such portions of the examination in the first instance. Thus only those questions and answers read into evidence by you are considered by the judge. However, counsel opposite has the right to request the court review other questions and answers, and to protest if he feels the passages are being read out of context or unfairly. In such a case, if the judge feels that "extra" passages need to be read in by way of explanation he/she will allow it, but this does not form part of your case. The rule allows you to use the discovery of the opposite party, not that of your own client. This is an area that is often mishandled at trial. Numerous judges have commented, both informally and in judgments, that the bar appears to lack understanding of when to do this, how to do it, and why one does it. Very often, counsel read in passages that are actually harmful to their own case. It is a well-established principle that if a party uses discovery testimony, he makes it his own evidence within the litigation. That party may contradict or qualify any portion of the testimony so used, so as to try to negate any adverse effect of same while retaining the benefit of the balance. However, if that party does not attempt to qualify the statement the whole of the testimony remains before the court, as part of that party's case. A party using discovery testimony must take the burden with the benefit, unless he can negate the burden. See the following: 2
Capital Trust Corporation v. Fowler (1921), 64 D.L.R. 289 (ant. C.A.); Hayhurst v. Innisfail Motors Ltd., [1935] 2 D.L.R. 272 (Alta. C.A.); and Kiervin v. Irving Oil Co. (1935), 4 F.L.J. 244. Read-ins are therefore dangerous, and must be handled with the same care, precision and preparation as the rest of the trial. lb} Dangers An oft-cited authority regarding read-ins is Collins v. Belgian Dry Cleaners (1951), 4 W.W.R. (N.S.) 241 (Sask.C.A.). At page 244 Gordon J.A. stated: "I still cannot understand why counsel still persist in tendering in evidence questions and answers from their opponent's examination for discovery which are diametrically opposed to their client's contention." In a similar vein, see Hallick v. Doroschuk, [1985] S.J. No. 148 (Q.B.), Goldenberg J. The case involved fire damage. The only evidence was from a witness of the plaintiff (a fire claims investigator), and the plaintiff's read-ins from the defendant's discovery. The defendant did not attend the trial personally, but had counsel present. During the evidence the trial judge asked plaintiff's counsel if he really wanted to put in the discovery evidence, and this question was repeated during argument. The judge noted counsel clearly understood the discovery evidence formed part of his own case. The portion of the discovery read in contained the defendant's absolute denial of having anything to do with the fire. Plaintiff's counsel contended that he put in all the questions and answers to show discrepancies within the defendant's own testimony at discovery. Goldenberg J. stated (paragraph 12): "That my well have been his intention but based on the whole of the plaintiff's case as presented, counsel for the plaintiffs has not freed 3
the plaintiff's case from the absolute denial of the defendant that he burned the stubble." The plaintiff's case was dismissed. Also see Schmelinsky v. Kewley Estate (1981), 11 Sask.R. 91 (Q.B.). Defendant's counsel read in some passages from the plaintiff's discovery. Defence counsel later argued that it would be "dangerous" to make any finding for the plaintiff unless her evidence was corroborated. Grotsky J. agreed, but found ample corroboration from three sources, one of which was the read-ins put in by defence counsel. See paragraphs 26 to 31 for an excellent analysis of the law in this area. The cases cited above are merely illustrations of the dangerous nature of readins. They illustrate that the essential truth about evidence is this: If you're putting it in, you're asking the Court to accept it and believe it to be true as part of your case, unless you have somehow qualified that tacit request. Always remember and review this rule when considering what to read in, if anything, at trial. Also remember the principle is that you may use any questions and answers from the Examination for Discovery of the opposite party as evidence in your case, saving all just exceptions. "May" is permissive. You do not have to do this as part of your case, and often you should not. You should consider doing so where you have a clear, unequivocal admission that is of assistance to your case or is damaging to the other side's case. One may "qualify" the bad part of a discovery answer in different ways. Usually, one calls evidence to contradict that portion of the answer or testimony. This appears to be inherently contradictory, in that if you are tendering the discovery testimony you are asking the court to accept it. However, the law permits the adducing of evidence to lessen the detrimental effect of discovery evidence; Le., you can try to keep the "benefit" but lessen the "burden": 4
Donison v. Donison (1983), 27 Sask.R. 121 (Q.B.); affirmed at (1984) 35 Sask.R. 183 (C.A.). Collins v. Belgian Dry Cleaners, supra. Schmelinsky v. Kewley Estate, supra. Johnson v. Kwon Poo Wong, [1957] 22 W.W.R. 565 (B.C.). As a general rule, you should not consider read-ins as an effective tool for impugning credibility of the other party. That is primarily for cross-examination, and the discovery transcript is used in a different way, as discussed below. Finally, some counsel have adopted the technique of reading in the entire transcript from the examination for discovery of the opposite party. It is difficult to see many cases in which this would be an asset. The potential danger far outweighs the potential benefit. Due to the principal of approbation, in putting in the entire transcript you are asking the judge to believe everything said by the party opposite. Bear in mind if you put in the whole transcript as part of your case you are bound by that evidence, no matter how damaging or unfavorable it may be. See Kiervin v. Irving Oil Co., supra. (c) Deceased Parties Caution must be used in this area. For years the law was that if your client dies after examination for discovery, his or her testimony could not be used at trial for his benefit. See cases such as McGrigor v. Elgin County Board of Education, [1975] 5 O.R. (2d) 356. 5
Numerous texts and papers still espouse this as the law in Saskatchewan. This is no longer correct. The genesis of this change came from Bulwer v. Oberg (1997), 156 Sask.R. 288 (a.b.). Allbright J. used Rule 239 in a very broad context, and admitted into evidence the discovery testimony of the defendant, who had died before trial. In 1999 the Rules of Court were amended to add Rule 239A: 239A. (1) Where a person examined for discovery: (a) has died; or (b) is unable to testify because of infirmity or illness; any party may, with leave of the trial judge, read into evidence all or part of the evidence given on examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court. (2) Subrule (1) shall not apply to examinations for discovery pursuant to Rule 222A. (3) At least five clear days notice shall be given of an application pursuant to Subrule (1). It has further been held that answers to undertakings may also be tendered at trial, subject to considerations of admissibility and weight: T-D Bank v. Leigh Instruments Ltd. (1998), 17 C.P.C. (4d) 388 (Ont. Gen.Div.). This new rule represents an absolute departure from the common law, and cases prior to 1999 should be read in light of this change. (d) Practical matters First and foremost, make sure the admission you obtain at discovery is clear and unequivocal. I can't begin to count the number of times I thought I had done well 6
during questioning, only to see when the transcript arrives that the Q and A is capable of more than one interpretation. This would include responses where you obtain a favorable answer, but the witness continues with a qualification. Repeat and narrow the question so that only the favorable part comes out. Read that question and answer in; leave it to counsel opposite to attempt to qualify or challenge it. There is some variation in practice within the Court. Some judges want a list of the questions and answers to be read in, the "deem" this to have occurred. Most want counsel to actually read the items into the record. It is my practice to set out what is to be read in a "booklet". This consists of a cover page, entitled "Portions of Transcript of Examination for Discovery of <name of part}'>, Plaintiff/Defendant, Read in at Trial on behalf of the <part}'>". I then photocopy the actual passages from the transcript, and have copies for the judge and counsel opposite. There is no magic on this, but it allows everyone to follow along with what you're reading in quite readily, and prevents delay in everyone finding the appropriate page in a transcript. This is for the assistance of the Court, which is one of your duties as counsel. I then actually read the passages into the record. Use of undertakings at trial poses some difficulty. Undertakings are obtained from the witness, not his/her lawyer, while the party is under oath. However, undertakings are answered by way of document or letter, as opposed to affidavit. As such, the reply to the undertaking is not sworn. There are differing views as to the proper ability to use such responses at trial. Probably, the technically safe course of action is to reconvene the discovery, get all the responses on the record under oath and mark any new production, and then feel safe in using them at trial. I have to confess that I only do this when it's 7
something "big". Most counsel simply read in the portion of the transcript related to the undertaking, then read in the letter or document answering same. When I've done this it has never been challenged, but I am always a bit uneasy about it. Bear in mind that the tests for admissibility are different at discovery and at trial. For example, you may obtain statements or admissions at discovery that are based upon hearsay. If you read in these statements at trial, all you are proving is that the opposite party made the statement. It is not proof of fact; the substantive evidentiary rule as to hearsay is not altered. See Adderley v. Bremner, [1968] 1 O.R. 621. I also note that when choosing to read in questions and answers at trial, one is not limited to one's own questioning. At discovery, if opposing counsel asks explanatory questions of his/her own client under the right of re-examination, then you can read in those passages even though you did not conduct the questioning. See Fink v. Bourassa [1973] S.J. No. 230 (0.8.), per Bence CJQB at paragraphs 17 through 25. He held (paragraph 23) that ".. the adverse party may put in any part of the examination whether the questions were asked by his counselor by counsel for the party who was being examined." Obviously, this must be done with the same care and consideration as outlined below. 3. Impugning Credibility The second major use of the transcript is to weaken the credibility of the opposite party at trial. Generally, this involves the cross-examining of such party to elicit answers to certain questions, then confronting that party with different answers to the same questions from the discovery. 8
One must always bear in mind the overall purposes of cross-examination: to obtain admissions or evidence helpful to your case; contradict or impeach the witness; or create an impression or atmosphere for the trier of fact. See: Sopinka et al: The Trial ofan Action; 2 nd edition; Butterworths; Toronto; at page 88. Sopinka goes on to point out that not every cross-examination (or portion thereof) will be directed to all three underlying purposes. If it is to be conducted for the purpose of impeaching or discrediting the witness, then prior inconsistent statements may be used. A prior inconsistent statement is a statement from the same witness on the same topic that is at odds with the trial testimony of that witness. This would include letters, written statements, affidavits and examinations for discovery. The utility of a discovery transcript is enhanced as a result of the testimony having been given in the same matter, and under oath. It is useful to have prepared a guide or summary of such a party's discovery. These can be done in many ways, but using a topical summary is perhaps easiest. Separately, set out what the party testified to at discovery with respect to each topic in the action. When that party testifies at trial, compare and contrast the trial testimony with that from discovery. Where significant departures from the earlier testimony are noted, those areas may be challenged during cross-examination. Your cross-examination is only as good as your transcript. If you have done a thorough job at discovery, obtaining clear answers and admissions, this is of huge help. ) 9
Also, preparation at the examination stage is crucial. When considering the aspect of discovery that involves future impeachment of a witness, search for other statements or evidence as to what the party to be examined may have said on a subject. Look for correspondence, email or other messages. Think about other people to whom the party may have spoken (business associates, bankers, acquaintances) and seek to interview them prior to conducting the discovery. If your case involves allegations of professional negligence, think about correspondence between a party and his/her governing body, or even testimony before a disciplinary tribunal. Judges also comment as to the manner in which such cross-examination is conducted. Questions on the same topic must be first put to the witness. If the answers differ from those at discovery, one may then proceed to cross-examine. If they do not, then be quiet. Be sure the trial testimony is nailed down such that it is clearly contradictory to the discovery testimony. Once the inconsistency is noted, you may proceed to explore it. Ask the witness whether he or she recalls giving evidence at discovery, and set out the date, place and time. Ask if they recall the following question(s) and answer(s) being given, then read those verbatim from the transcript to the witness (most say "if that's what it says there, it must be what I said"). Ask the witness to acknowledge he/she was under oath then, and is under oath today. Get the witness to acknowledge the discrepancy. Opinion is divided as to asking the witness to account for why the difference in testimony exists. I personally think it is dangerous to do so. The witness might come up with a good answer that shoots you down. If your transcript is clear and the contradiction obvious, why would you want to do more for the judge or jury? 10
The safer position is to simply leave the contradiction in the lap of your trier of fact. Stop once the discrepancy is acknowledged. One exception to that general rule is where your purpose in using the discovery at trial is to try to nullify the trial evidence. In other words, the discovery evidence is good for you, but the trial evidence is damaging. You may wish to risk taking the extra step and pushing to destroy the trial evidence. You may do this in a number of ways, but often the party is asked whether his/her memory gets worse as time goes by, and he/she is more likely to be accurate the closer to the event that the recollection is tested. Suggest to the witness that due to this the discovery evidence was true, and he/she was simply mistaken as to what was said at trial. This will somewhat reduce the impact of the contradiction to have the judge or jury thinking "liar, liar, pants on fire" but if you can successfully get the discovery evidence preferred by the witness, the damage from trial testimony is undone. BE CAREFUL. Make sure the contradiction is plain. Test the witness on a few more minor matters before contradicting by use of discovery.. Be sure your recollection or your summary of the discovery evidence is accurate before embarking on cross-examination in this area. Bear in mind that this sort of impeachment cross-examination can be terribly effective and can demoralize the witness, leaving them liable to further effective cross-examination. 4. Other Proceedings An issue arises as to use of the discovery transcript in a civil action in another proceeding, be it another lawsuit, a criminal matter, or an administrative tribunal (e.g. professional discipline hearing). 11
It would certainly appear to be the case that discovery transcripts are caught by the implied undertaking rule; that is, the parties and their counsel implicitly undertake to only use information obtained in the course of a legal proceeding for that proceeding, and for no collateral or ulterior purpose. For full discussions on the implied undertaking rule, see: Hwang v. Saskatoon, [2003] S.J. No. 851 (Q.B.), Klebuc J. Sterling v. Sullivan, [2003] S.J. No. 531 (Q.B.), Gerein CJQB. E.K. v. Canada, [2004] S.J. No. 167 (Q.B.), R.S. Smith, J. While beyond the strict scope of this paper, counsel should be well aware of this rule when using or subsequently dealing with the discovery transcript. The converse of the rule is not always true; that is, transcripts of proceedings from other tribunals may sometimes be used in civil litigation. Before deciding whether to use such information, counsel should carefully research the law and ascertain whether such additional use is permitted. The proper use of testimony and documents obtained at discovery is a vital tool in the arsenal of trial counsel. Counsel should explore the full use of information obtained at examination for discovery, but should also be armed with the technical ability to effectively utilize such information in court. Fortunately there are numerous useful books, videos and resources in this area. As well, junior counsel might consider reviewing their techniques with someone more senior as part of their trial preparation. 12