June 25, 2014
In the course of an action, situations may arise where an adverse party lacks knowledge of a key issue that may be known by a non-party to the litigation. In such instances, relief may be available to conduct an examination for discovery of a non-party. Having said that, a party does not have the ability to examine a non-party by right and must therefore seek leave of the Court pursuant to Rule 31.10.
The preliminary consideration for the Court in hearing such a motion, as set out at Rule 31.10(1), is whether there is reason to believe the person sought to be discovered has information relevant to a material issue in the action. Once past this initial hurdle, the moving party must also satisfy the Court that it meets the three part test set out at Rule 31.10(2), namely that:
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.
The requirements above are cumulative and therefore the moving party must satisfy all of the requirements set out in 31.10 to be successful on the motion.
Many motions for examination of a non-party fail at 31.10(2)(a), the requirement of the moving party to demonstrate that it cannot otherwise obtain the information. The moving party must establish it is unable to obtain the information from the other parties to the action, and also the non-party they wish to examine. “Actual or constructive” refusal to provide the information sought must be demonstrated by the moving party.
The test for leave is intentionally difficult to satisfy so as to prevent abuse by litigants with ulterior motives. It is not meant to be a “fishing expedition” by the examining party. Litigation is a difficult enough process that ought not to be complicated by the inclusion of non-parties on a mere whim of litigants. For this reason, the court does not take these requests lightly. Additionally, there are further impediments codified in the Rules to dissuade litigants from seeking non-party discovery. Generally, the examining party must bear the cost of producing and distributing transcripts of the non-party examination to all of the parties to the action and the examining party is not entitled to recover their costs for the non-party examination.
In litigation, knowledge is power. The court frowns upon “trial by ambush” and the parties have a right to know the case to be met. Accordingly, if a non-party has information relevant to a material issue in the action, R31.10 permits a party to acquire that evidence. However with such significant hurdles to overcome in seeking leave, it must be saved for those rare occasions where it is actually appropriate.