Limits to Discovery

In a previous post , I provided an example of a request for production of documents in pre-trial discovery. In this post, I consider the limits to discovery.

As we saw, discovery can be conducted with a request for production of documents (an RFP), through interrogatories (literally twenty questions), and depositions (taking oral testimony).

Pre-trial discovery has often been labelled as “fishing expedition” because of the breadth of requests that can be made. For instance, you can ask for all of your spouse’s payslips for the past five years. At the end of the day, the trial judge (or discovery commissioner) is the only one that can determine if your discovery requests are excessive.  You will need to petition the court (via a motion) for the judge to make a ruling.

In general, the court may curtail the scope of discovery “if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”   Burden refers to time, cost to dollars, and instrusiveness to the notion of a right to privacy. For instance, should your ex-spouse be able to read all of your emails since your separation?  

Something is discoverable, “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement” and this is usually interpreted very liberally – it does not have to be something that can introduced into evidence at the trial. At the end of the day, the judge (or discovery commissioner) will have to make a determination on how burdensome, costly, or instrusive the request and the benefit of the insight that the requesting party may gain.

The judge may be particularly sensitive to whether the same information could be obtained another way or whether the request is duplicative. For instance, requesting five years of payslips to determine your income when the same information is available through the tax returns you have already provided may be seen as unnecessarily burdensome.  Once again it is up to the judge.

On the bright side, priveleged information is generally not discoverable (such as a letter between you and your lawyer or a conversation between you and your doctor).  

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