April 10, 2018

Three things about the discovery process you probably didn’t know

Lyle Harris


  1. If your partner or confidant meets your lawyer along with you, you have waived privilege.

Suppose you have started a lawsuit because someone has caused you harm or owes you money. You hire a lawyer who issues a Notice of Civil Claim on your behalf. The day approaches for your examination for discovery and your lawyer calls you in for an appointment to prepare you for your examination. Like most clients, you are a little bit nervous talking to your lawyer and you decide you want to bring your partner or best friend with you to sit in on the meeting for “moral support”. Did you know that if that other person sits in the conference with you, you have waived privilege over everything you and your lawyer discuss?

Solicitor-client privilege for the purpose of obtaining legal advice prevents you or your lawyer from ever having to disclose the legal advice or the circumstances around which it was given. In a similar way, litigation privilege surrounds all of the preparation you and your lawyer do for a civil lawsuit. However, the law says that this privilege is lost if it is “waived” by disclosing the advice voluntarily to a third party. The confidant, partner, or best friend who is sitting in your lawyer’s room with you for moral support is that “third party”! If the opposing counsel finds out that the legal advice was given with a third party present, you may be liable to disclose what was talked about in that meeting. While the law affords some protection to spouses from disclosing communications made between the spouses during a marriage, it is in your interests that the trusted friend or partner sit and wait outside while your lawyer prepares you for your examination for discovery.

  1. You must disclose all documents, even those that hurt your case.

The rules of document disclosure require that you disclose all documents that might prove or disprove a material fact in your case, as well as all documents that will be used at trial. If circumstances warrant, the opposing party may also require you to disclose all documents that may lead on a train of inquiry leading toward other documents or facts that may hurt or harm your case.

Your lawyer has a duty to act in your best interests and to take any steps afforded by the law to prosecute your case or defend you. However, your lawyer also has a duty to other lawyers to act honestly and with integrity, and a duty to the Court to uphold the law and the processes of the Court. This means that if there are documents out there that may be harmful to your case, your lawyer has a duty to disclose those as well. So if your lawyer asks you to produce documents that you believe are harmful to your interests, you are obliged to produce these. Your lawyer, in asking for these documents, is doing his or her duty to the profession and to the court system to maintain its honesty and its integrity.

  1. The insurance company may have you medically examined by a doctor or doctors of its own choosing.

You may ask yourself, surely there is no person more trustworthy than my family doctor? Surely there is nothing more intimate than a physical examination? You are probably correct to answer “yes” to both of these propositions. However, our Supreme Court Civil Rules provide that in order for the parties to a lawsuit to be placed on an equal footing, the court may order you to submit to one or more medical examinations if your physical or mental condition is in issue.

The lawyers at Harris & Brun Law Corporation are very familiar with the nuances, twists and turns of privilege and waiver of privilege, document disclosure, and court-ordered medical examinations. Although these procedures may seem daunting and unfamiliar to an ordinary litigant, you may rely on our lawyers to steer you in the right direction in a way that will ultimately work to the advantage of your case.

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