Examinations for Discovery (Part 2): I’ll Take Your Refusal Under Advisement
One of the most challenging and important aspects of conducting an examination for discovery is dealing with refusals by opposing counsel. Requests for production of certain privileged documents or for an undertaking to disclose evidence obtained after discovery are often met with: “we will comply with the Rules”. Counsel who know the Rules of Civil Procedure (the “Rules”) and how those rules have been interpreted by the courts can take appropriate steps in the face of such responses. It is with this in mind that we address some of the common refusals that plaintiff’s counsel face, examine their legitimacy, and offer practical solutions on how to best to address and respond to them.
We begin this paper by explaining the Rules governing disclosure and production, with a particular focus on privileged documents. We then examine three common refusals that defence counsel often raise: first, the refusal to provide the information contained in a privileged document; second, the refusal to provide information contained in a privileged statement that the defendant has provided to his or her insurer; and third, the scope and parameters of disclosing and producing surveillance evidence.
Click here to view the paper.
About the Authors
Ben enjoys the complexities of personal injury litigation and finds the cases that require creative thinking the most gratifying. His practice is exclusively devoted to representing clients with brain injuries, spinal cord injuries, and severe orthopaedic injuries.