When should a witness NOT answer a question during an examination for discovery?

Typically, clients are prepped by their lawyers for an examination for discovery and are normally informed about the process. Oftentimes, concerns such as what to do when you are unable to answer a question or who will be present, arise. However, questions such as these can be difficult to answer, as it is unlikely the witness will know whether to answer certain types of questions or not.

At an examination, opposing lawyers ask questions about the case. Some of these questions might be repetitive and even damaging to a witness’s testimony. In this context, a witness should be mindful that it is not necessary to answer questions that fall into the following framework:

Privileged information

Confidential conversations between a client, a medical professional, a family counsellor or a religious leader, are some examples of privileged information. Clients are permitted to refrain from answering similar questions at an examination.

Irrelevant information

Any questions that are thought to be irrelevant and might not have any bearing on the outcome of the case, fall under this category. If answered, a lawyer can object on the client’s behalf.

Private information

A client has the right to refuse to answer questions pertaining to a person’s health, religious beliefs or sexuality. The only permissible scenario for a response would be if the opposing lawyer can justify how the client’s answer has a direct bearing on the case.

Every client should be able to exercise their individual rights in an examination. Having knowledge of the right to refuse under certain circumstances could work in your favour.

To book a court reporter for a meeting or a mediation, or even to discuss a court reporting position with On The Record, call one of our locations today, conveniently located in Whitby and Barrie. We look forward to discussing your court reporting or mediation needs.