9.20 Discovery

Resources:

For more information on the discovery process see:  The Supreme Court of BC’s The Discovery Process  or The Family Law in BC Examination for Discovery Guide.

Discovery is a legal way to exchange information. It means getting access to relevant information your former spouse has about the case. This can be done by sharing documents, (such as income statements), or by asking them to attend an examination for discovery, (an interview where you get to ask them questions about the issues). Your former spouse will have the same right to discover you, which means you should share information and attend an examination for discovery if requested. It is optional whether or not you wish to discover your former spouse. There are different ways to discover but we will discuss the most common one: Examination for Discovery.

 

Examination for Discovery

An Examination for Discovery is a meeting to gather information from your former spouse by asking them questions. They take place usually at the office of a court reporter, who keeps a written record of all that is said during the discovery. 

The examination can take place after the Notice of Family Claim and Response are filed. To set up one, book a court reporter at a time when everyone involved (you, your former spouse and lawyers) is available. Then you must serve the Appointment to Examine for Discovery (Form F21) on your former spouse seven days before the date of the examination.

What to expect:

  • Examinations for discovery are limited to five hours long. 
  • When you examine the other side, you are responsible for paying the court reporter and the witness fee (see schedule 3 ).
  • You can ask questions about anything related to your case.
  • You can ask questions about documents you present to them.
  • Most discoveries begin by asking the person to swear or affirm that they'll tell the truth.
  • Then they are asked to state their name, address, and occupation. 
  • If they can't answer a question there, you can ask them to send you the answer by letter. You can also ask the person for the names and addresses of other people who might have information relevant to the proceeding. 

Transcript

You can get the transcript of the discovery to use as evidence in court. But be aware that, depending on the length, these transcripts can get expensive. Therefore, be sure to take good notes while conducting a discovery. 

Conducting an examination tips:

  1. Prepare- It's a good idea to prepare a script of your questions ahead of time and to organize the documents you will be using. Also, make sure you know your facts.
  2. Ask one question at a time- If you’re asking multiple questions at a time, you won’t know which question they are answering. It’s better to break it down and ask shorter, more precise questions
  3. Move on- Once you have a necessary admission, move on.  
  4. Listen - Be sure to listen to an answer. Be flexible enough to deviate from your script to ask follow up questions when needed.
  5. Be courteous- Always be polite to opposing counsel and the examinee.

Attending a discovery tips:

  1. Keep it short – Keep your answers short. Answer the questions asked as briefly as possible.
  2. Be honest – You must answer truthfully. If you don’t know the answer, say so. 
  3. Prepare – Before attending, familiarize yourself with the facts and review your documents. It’s your responsibility to know the relevant facts of your case. 
  4. Stay calm – Don’t get upset. Review managing your emotions in chapter 3, before you attend. 

Fill out the Examination for Discovery Worksheet before you conduct one so you won’t forget to ask any questions you want to ask.