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Difference between revisions of "Discovery and Disclosure in Family Law"

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Discovery and Disclosure in Family Law (view source)

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<blockquote><tt>'''"document"''' has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.</tt></blockquote>
<blockquote><tt>'''"document"''' has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.</tt></blockquote>


Rule 9-1 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules] requires each party to produce a list of their relevant documents (referred to as a “list of documents”) (see Rule 9-1(1) of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]).  The list of documents must be in [[Form F20 List of Documents | Form F20]] and provided to the other party within 35 days after the close of the pleadings (which is usually the date of service of the response, with or without a counterclaim).   
Rule 9-1 [http://canlii.ca/t/8mcr Supreme Court Family Rules] requires each party to produce a list of their relevant documents (referred to as a “list of documents”) (see Rule 9-1(1) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]).  The list of documents must be in [[Form F20 List of Documents | Form F20]] and provided to the other party within 35 days after the close of the pleadings (which is usually the date of service of the response, with or without a counterclaim).   


The list of documents ([[Form F20 List of Documents |Form F20]]) is divided into 5 parts:
The list of documents ([[Form F20 List of Documents |Form F20]]) is divided into 5 parts:
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* indicate whether the document is still in that party’s possession, and  
* indicate whether the document is still in that party’s possession, and  
* indicate the date on which the document is being listed (this is helpful when new documents are added and lists are updated throughout the proceeding).
* indicate the date on which the document is being listed (this is helpful when new documents are added and lists are updated throughout the proceeding).
Each party is required to keep their list of documents up-to-date.  [http://canlii.ca/t/8mcr Rule 9-1(6)] states:
<blockquote><tt>
:(6) If, after a list of documents has been served under this rule,
::(a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or
::(b) there comes into the party's possession or control a document that could be used by any party at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial,
::the party must promptly amend the list of documents and serve the amended list of documents on the other parties.
</tt></blockquote>
Each party is entitled to ask that additional documents be produced if they think that there are documents or categories of documents missing from the list of documents provided by the other party (see [http://canlii.ca/t/8mcr Rule 9-1(7) & (8)]) The request must be in writing.  If the party faced with the request for additional documents does not provide the requested documents (and an amended list of documents listing the additional documents) within 35 days of receiving the request, the party making the request can make an application to the court (see [http://canlii.ca/t/8mcr Rule 9-1(9) & 10]). This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].
Each party is also entitled to ask for copies of the documents listed on the other party’s list of documents (see [http://canlii.ca/t/8mcr Rule 9-1(13)]) and to ask to inspect (to view) the originals of the documents listed on the other party’s list of documents (see [http://canlii.ca/t/8mcr Rule 9-1(12)];  also [http://canlii.ca/t/8mcr Rule 9-1(14)]).  If the party wants copies of any of the listed documents, that party is required to pay for the copies in advance of receiving them (see [http://canlii.ca/t/8mcr Rule 9-1(13)]).
If there are documents that are necessary to prove or disprove a fact at trial but are not in the possession or control of either party, then either party may make an application to the court for the production of copies of the documents by a person or organization or business who is not a party to family law proceeding (which application must be served on the person or organization or business sought to produce the documents) (see [http://canlii.ca/t/8mcr Rule 9-1(15)].  For more information on the process for bringing interim applications, see [[Interim Applications in Family Matters]].
Documents received in the context of a legal proceeding are confidential and not to disclosed or used for any purpose beyond the scope of the proceeding (i.e.: showing to friends or family or using in another court proceeding), unless by order of the court or agreement between the parties.  This is a serious obligation that each party has in relation to both the other party and to the court.  If a party fails to honour this obligation, that party can be found to be in contempt of court.
=== Examination for Discovery ===
Rule 9-2 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] allows each party to a lawsuit to examine the other party under oath about the facts and matters in issue in the court proceeding, which step is called an examination for discovery.  Examinations for discovery are not mandatory, but are an important step in the discovery process and are particularly important when the proceeding is going to trial for the following reasons:
# an examination for discovery allows each party to gain detailed information about the other party’s case, including the names of potential witnesses, and to assess the strengths and weaknesses of the other party’s case;
# the evidence of the party being examined is recorded and the party who conducts the examination for discovery may read into the record of the trial the answers given by the opposing party.  Answers read into the record in this manner have the same effect as sworn evidence given by the opposing party at the trial;
# as the evidence of each party being examined is recorded, if there are discrepancies or inconsistencies between that party’s evidence at the examination for discovery and that party’s evidence at trial, the discrepancies and inconsistencies can be used against the party at trial or undermine or impeach that party’s credibility; and
# if the parties have lawyers and the lawyers have had minimal to no contact with the other party to date, an examination for discovery provides an important opportunity for the lawyer to assess how the other party will present at trial.
The examination for discovery of each party is limited to 5 hours (see Rule 9-2(2) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]) unless that party agrees otherwise, and may be conducted anywhere the parties agree.  It is often conducted at the office of one of the party’s lawyers, or at the courthouse, or at the office of the court reporter.  All that is required is a private room in which the lawyer for one party may ask questions of the opposite party in the presence of the court reporter.  The court reporter is not, in any sense, a judge, but a court official who has the power to administer oaths and is authorized to record verbatim evidence.
The ordinary procedure is for both the parties and their lawyers to attend.  The court reporter administers the oath or affirmation and then transcribes the questions and answers.  At the request of either party (and for a fee), the court reporter binds the transcript into a book which is available for the purposes of the trial.
Because the transcript of the examination for discovery that is prepared by the court reporter may be used at trial to provide evidence by the other party and to undermine the credibility of the party giving the evidence, it is important that a party fully prepared for the examination for discovery.  In addition, while the evidence given at the examination for Discovery is not determinative of the outcome of the court proceeding it often has a significant impact on settlement negotiations subsequent to the examination for discovery and on the trial itself.
When attending to be examined for discovery, a party must bring all documents in that party’s possession or control which relate to the court proceeding. 
Because the examination for discovery is one of the first opportunities to meet the lawyer of the other party, each party should strive to make a good impression.  A party attending to examined for discovery should:
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