Civil Procedure Rules of Nova Scotia  
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Part 5 - Disclosure and Discovery

Rule 18 - Discovery

Scope of Rule 18
18.01 (1) This Rule allows a party to question a witness by discovery, unless the question was answered by the witness in response to interrogatories.
  (2) Provisions about discovery in Rule 55 - Expert Opinion, and in Rule 57 - Action for Damages Under $100,000, prevail over this Rule.
  (3) A party may discover a witness by agreement, under a discovery subpoena, or by order, in accordance with this Rule.
       
Duties of party in an action
18.02 (1) After pleadings close in a defended action, a party must do all of the following:
   
(a)
in deciding whether a witness needs to be discovered, consider whether the discovery would promote the just, speedy, and inexpensive resolution of the proceeding;
   
(b)
cooperate with each party to organize a required discovery so it is held quickly and conveniently;
   
(c)
prepare, or direct officers or employees to prepare, for discovery of the party so that questions are answered with a refreshed memory;
   
(d)
become informed before the discovery of all discoverable information reasonably accessible by the party so questions may be answered without delay;
   
(e)
make best efforts to conduct discovery so as to further the just, speedy, and inexpensive resolution of the proceeding.
  (2) A party may consider Rule 18.24(1) when determining whether a discovery would promote the just, speedy, and inexpensive resolution of a proceeding for the purpose of Rule 18.02(1)(a), 18.04(2)(b), and 18.05(2)(a)(ii).
       
Interview or discovery by agreement
18.03 (1) Nothing in these Rules prevents a party from interviewing a witness with the agreement of the witness and, if the witness is known to be represented on the subject of the interview, the permission of the witness’ lawyer.
  (2) A party may interview a witness who is not a party, or an employee or officer of a party, under oath or affirmation and record the interview or take a sworn or affirmed statement without affecting the admissibility of the witnesses’ evidence.
  (3) A party may discover an individual party or an employee or officer of a corporate party by agreement of the party seeking discovery and the party to be discovered.
  (4) A party may discover a witness who is not a party with the agreement of the witness.
  (5) A party who wishes to discover anyone under an agreement must make best efforts to schedule the discovery at a time and place convenient for each party.
       
Discovery subpoena in an action (party)
18.04 (1) A party to an action who provides required representations may obtain a discovery subpoena (party) to discover any of the following witnesses:
   
(a)
an individual party;
   
(b)
the designated manager and one other officer or employee of a corporate party;
   
(c)
further officers and employees, if the party also provides required undertakings to pay expenses.
  (2) A party requesting a discovery subpoena (party) directed to an individual party must provide both of the following representations to the court:
   
(a)
that the party is in compliance with Rule 15 - Disclosure of Documents, and Rule 16 - Disclosure of Electronic Information;
   
(b)
that the party believes the discovery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief and an explanation of why a discovery subpoena is required instead of, or in addition to, an agreement.
  (3) A party requesting a discovery subpoena (party) directed to a designated manager, or one other officer or employee of a corporate party, must provide all representations required for a subpoena directed to an individual party and a representation that the designated manager, or the other officer or employee, has not yet been discovered in the proceeding.
  (4) A party requesting a discovery subpoena (party) directed to a further officer or employee must provide all of the following representations to the court and file the following undertaking:
   
(a)
all representations required for a subpoena directed to an individual party;
   
(b)
a representation that the designated manager and one other officer or employee have been discovered;
   
(c)
an undertaking to pay the charges of the reporter to record and transcribe the discovery and the reasonable expenses of the witness to attend the discovery, including transportation, accommodation, and meals.
  (5) The subpoena must contain the standard heading, be entitled “Discovery Subpoena (Party)”, be issued by the prothonotary, and include all of the following:
   
(a)
the name of the witness;
   
(b)
if the witness is an individual party, the address for delivery designated by the witness, and, if the witness is an officer or employee of a corporate party, the address for delivery designated by the corporate party;
   
(c)
requirements that the witness attend the discovery, answer questions properly asked by a party and bring, or provide access to, described documents, electronic information, or other things;
   
(d)
the time, date, and place of the discovery;
   
(e)
a warning that failure to obey the subpoena may be punished as contempt of court.
  (6) A party who obtains a discovery subpoena (party) must deliver a certified copy of subpoena to the address for delivery of the individual party to be discovered or the party whose officer or employee is to be discovered no less than ten days before the day the discovery is to be held.
  (7) The party who obtains the subpoena must notify each other party by delivering a copy of the subpoena to the other party no less than ten days before the day the discovery is to be held.
  (8) A corporate party whose officer or employee is to be discovered under subpoena must do both of the following:
   
(a)
deliver a copy of the discovery subpoena (party) to the officer or employee;
   
(b)
take all reasonable steps to have the officer or employee attend the discovery.
  (9) The subpoena may be in Form 18.04A.
  (10) The undertakings and representations may be attached to, or printed on the back of, the subpoena and they may be in Form 18.04B.
       
Discovery subpoena in an action (non-party)
18.05 (1) A party to an action who provides required representations and undertakings may obtain a discovery subpoena directed to a witness who is not a party, an officer of a party, or an employee of a party.
  (2) A party requesting a discovery subpoena directed to a non-party witness must provide both of the following representations to the court and file all of the following undertakings:
   
(a)
representations that
   
(i)
the party is in compliance with Rule 15 - Disclosure of Documents, and Rule 16 - Disclosure of Electronic Information,
   
(ii)
the party believes the discovery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief and an explanation of why a discovery subpoena is required instead of, or in addition to, an interview or a discovery by agreement;
   
(b)
undertakings to pay
     
(i)
all charges of the reporter to record and transcribe the discovery,
     
(ii)
immediately on presentation of receipts or other evidence, the reasonable expenses of the witness to attend the discovery, including transportation, accommodation, and meals,
     
(iii)
immediately on conclusion of the discovery, an attendance fee for the witness of thirty-five dollars per hour.
  (3) A judge who is satisfied that it is necessary for a non-party witness to be represented by counsel at a discovery held under subpoena may order a party who obtains the discovery subpoena to pay for the attendance at the discovery of the witness’ counsel.
  (4) The subpoena must contain the standard heading, be entitled “Discovery Subpoena (Non-party)”, be issued by the prothonotary, and include all of the following:
   
(a)
the name of the witness and the community in which the witness resides;
   
(b)
requirements that the witness attend the discovery, answer questions properly asked by a party, and bring, or provide access to, described documents, electronic information or other things;
   
(c)
the time, date, and place of the discovery;
   
(d)
a warning that failure to obey the subpoena may be punished as a contempt of court;
   
(e)
notice that the witness may make a motion to revoke the subpoena no less than two days before the day the discovery is to be held;
   
(f)
a statement of the witness’ rights to be reimbursed expenses, be paid a witness fee, and have counsel present.
  (5) The discovery subpoena (non-party) may be in Form 18.05A.
  (6) The undertakings and representations may be attached to, or printed on the back of, the subpoena and they may be in Form 18.05B.
       
Notice of discovery of non-party in an action
18.06   A party entitled by agreement or subpoena to discover a non-party must do each of the following no less than ten days before the day the discovery is to be held:
   
(a)
if the discovery is by subpoena, deliver a certified copy of the discovery subpoena (non-party) to the witness personally;
   
(b)
if the discovery is by agreement, deliver written confirmation of the agreement to the residence or business address of the witness, which confirmation must include the time, date, and place of the discovery, the names of the parties entitled to question the witness, the names of each counsel, and a record of the arrangements for reimbursing the witness’ expenses and attendance fee;
   
(c)
notify each other party by delivering a copy of the confirmation or subpoena.
       
Waiving a discovery subpoena in an action
18.07   A party who obtains a discovery subpoena in an action may waive compliance with the subpoena by delivering a notice to all parties, and to a non-party witness under subpoena to the discovery, immediately on deciding to waive the discovery.
       
Revoking a discovery subpoena in an action
18.08 (1) A judge may revoke a discovery subpoena that results from, or would lead to, an abuse of process in an action.
  (2) A judge may revoke a discovery subpoena (party) issued in an action to an officer or employee of a corporate party, if both of the following apply:
   
(a)
two of the corporate party’s employees or officers have already been discovered;
   
(b)
the further discovery would not promote the just, speedy, and inexpensive resolution of the proceeding.
  (3) A judge may revoke a discovery subpoena (non-party) that would lead to a discovery that does not promote the just, speedy, and inexpensive resolution of an action.
       
Discovery in an application
18.09   A party to an application may discover another party, an officer or employee of another party, or a non-party witness by agreement of all parties and any non-party witness, or under a discovery subpoena (application).
       
Approval and directions
18.10 (1) A party may make a motion for an order approving the issuance of a discovery subpoena (application) after the notice of application is filed.
  (2) An order approving the issuance of a discovery subpoena (application) may provide for any of the following:
   
(a)
a method for delivery of the subpoena to the witness and any respondent who is within time for filing a notice of contest but has not yet designated an address for delivery of documents;
   
(b)
payment of the expenses of recording and transcribing the examination;
   
(c)
reimbursement of a non-party witness’ transportation, accommodation, and meals and payment of an attendance fee;
   
(d)
the obligation of a corporate party to produce a witness who is an officer or employee of a corporate party;
   
(e)
a right to make a motion to revoke the subpoena;
   
(f)
any other terms governing the discovery.
  (3) A judge who approves the issuing of a discovery subpoena in an application may require the party who obtains the subpoena to file an undertaking to indemnify the witness for the expenses of attending the discovery and to pay witness fees.
  (4) A judge may impose on parties to an application duties to cooperate in the organization of discovery, prepare for discovery, or become informed before discovery.
  (5) A judge may require a corporate party to designate a manager who must become informed for the purpose of discovery in an application.
       
Discovery subpoena for discovery approved in application
18.11 (1) The prothonotary may only issue a discovery subpoena in an application with the permission of a judge.
  (2) The subpoena must contain the standard heading, be entitled “Discovery Subpoena (Application)”, be issued by the prothonotary, and include all of the following:
   
(a)
the name of the witness and the designated address of a party witness or the name of the community in which a non-party witness resides;
   
(b)
requirements that the witness attend the discovery, answer questions properly asked by a party, and bring, or provide access to, described documents, electronic information, or other things;
   
(c)
the time, date, and place of the discovery;
   
(d)
a warning that failure to obey the subpoena may be punished as a contempt of court.
  (3) The discovery subpoena (application) may be in Form 18.11.
       
Discovery by order
18.12 (1) A judge may order a witness or a custodian of a document, electronic information, or other thing to submit to discovery.
  (2) A judge may order discovery before a proceeding has started in one of the following circumstances:
   
(a)
the party who moves for the discovery wishes to start a proceeding but is prevented from doing so immediately, and evidence needs to be preserved;
   
(b)
the party wishes to start a proceeding on a cause of action that appears to have merit, and discovery is needed to identify a person against whom the proceeding is to be brought;
   
(c)
a proceeding is likely to be started against the party who moves for the discovery, and evidence needs to be preserved;
   
(d)
a court outside Nova Scotia requests assistance.
  (3) A judge may order a discovery during a proceeding if both of the following apply:
   
(a)
the person to be discovered is in a place outside Nova Scotia, and a discovery subpoena cannot be enforced, but an order would be enforced or obeyed;
   
(b)
the proceeding cannot be determined justly without the discovery.
  (4) Discovery may be held after a proceeding has concluded in accordance with Rule 79 - Enforcement by Execution Order.
       
Scope of discovery
18.13 (1) A witness at a discovery must answer every question that asks for relevant evidence or information that is likely to lead to relevant evidence.
  (2) A witness at a discovery must produce, or provide access to, a document, electronic information, or other thing in the witness’ control that is relevant or provides information that is likely to lead to relevant evidence.
  (3) A witness who cannot comply with Rule 18.13(2) may be required to make production, or provide access, after the discovery or at a time, date, and place to which the discovery is adjourned under Rule 18.18.
  (4) A party who withholds privileged information but decides to waive the privilege must disclose the information to each party and submit to discovery if required by another party.
  (5) An expert retained by a party is not subject to discovery, except as permitted under Rule 55 - Expert Opinion.
       
Place of discovery
18.14 (1) A discovery may be held at any place in or outside the province.
  (2) A judge may request the assistance of a court or another authority outside the province for holding a discovery and securing the attendance of a witness at a discovery.
  (3) A party proposing to examine a non-party witness must endeavor to agree with the witness and the other parties on a place for discovery.
  (4) A judge may designate a place for a discovery to be held.
  (5) A discovery subpoena must name either the agreed place, the place designated by a judge, or a place that is convenient for the witness.
       
Recording discovery
18.15 (1) A discovery must be recorded in a way suitable for accurate transcription.
  (2) The parties and the witness may agree, or a judge may order, that a discovery be recorded audio-visually.
       
Conduct of discovery
18.16 (1) A party at a discovery must abide by both of the following rules for conduct of discovery, unless the parties agree or a judge directs otherwise:
   
(a)
the party who obtains a discovery subpoena or who first requests a discovery held by agreement has conduct of the discovery, including directing the order in which the parties will question the witness;
   
(b)
the order in which discoveries will be held when more than one witness is present for discovery at the same time may be determined by the party who requests any of the discoveries or obtains any subpoena, and whose name appears first in the heading.
  (2) Each party is entitled to attend a discovery.
  (3) A court reporter, or a person competent to log and record testimony, must accurately record the communications at the discovery, mark exhibits, and log questioning of witnesses, exhibits produced, undertakings made, adjournments, and the conclusion.
  (4) For the purpose of Section 64 of the Evidence Act, Section 26 of the Interpretation Act, and Section 49 of the Judicature Act, the court reporter may administer oaths and affirmations at the discovery.
  (5) Translation or interpretation must be in accordance with Rule 48 - Translation, Interpretation, and Assistance.
  (6) A party who undertakes to do anything in the course of a discovery must perform the undertaking no more than sixty days after the day the undertaking is made, unless the parties agree or a judge directs otherwise.
       
Objections to questions at discovery
18.17 (1) Making no objection to a question, or making an objection but giving an answer, at a discovery is not an admission that the subject of the question, or the answer, is admissible.
  (2) Withdrawing a question is not an admission that the subject of the question is inadmissible.
  (3) The only person who may object to a question is the person who is being questioned, a person who claims privilege over the information to be given in answer to the question, or a party whose officer or employee is being questioned.
  (4) A person who is represented by counsel must make an objection through counsel.
  (5) A party who objects to a question must do both of the following:
   
(a)
state why the party contends the subject of the question is irrelevant, will not lead to relevant evidence, or is privileged;
   
(b)
provide a description of any series of questions, or of any subject for examination, to which the objection would generally apply.
  (6) A party who objects to a question may, nevertheless, rely on Rule 18.17(1) and answer the question, and otherwise the party questioning must respond to the objection in one of the following ways:
   
(a)
withdraw the question;
   
(b)
continue with the discovery, if that is possible, and reserve the question, line of questions, or subject for ruling by a judge;
   
(c)
adjourn the discovery, if there is no reasonable alternative, and bring a motion for a ruling on the objection as soon as is practical.
  (7) A judge may determine an objection to a question, or a line of questions, made at discovery.
  (8) A judge may order resumption of the discovery, and provide any directions for its further conduct.
       
Production or access after discovery or at adjournment
18.18 (1) A party may require a witness who is examined at a discovery to produce, or provide access to, a document, electronic information, or other thing referred to by the witness but not brought to, or accessible at, the discovery, unless one of the following applies:
   
(a)
the document, information, or thing is not in the control of the witness;
   
(b)
it is not relevant and is not likely to lead to relevant evidence;
   
(c)
it is privileged.
  (2) A judge may order a witness who fails to comply with a requirement for production or access to make production or provide access, and the judge may order the witness to indemnify the party who seeks the order for the expense of obtaining the production or access.
  (3) A party who requires production or access before the party completes examination of a witness at discovery may adjourn the discovery.
  (4) A judge may relieve a party or a non-party witness from a requirement to produce, or provide access, at discovery examination if the party or witness rebuts the presumption for disclosure in accordance with Rule 14.08, of Rule 14 - Disclosure and Discovery in General.
       
Error in discovery answer
18.19 (1) A party who becomes aware that they, or their employee or officer, gave an erroneous or incomplete answer at discovery must immediately notify each other party of the error or incompleteness and, unless the parties agree or a judge orders otherwise, provide the correct and complete information in a written statement signed by the person who gave the answer.
  (2) A corporate party whose designated manager gives erroneous testimony on discovery that the party does not have relevant information, or does not control a relevant document, electronic information, or other thing may not present the evidence that would have been disclosed at discovery if the error had not been made, unless the party does one of the following:
   
(a)
corrects the error no less than one day before either the finish date in an action or the day of the hearing of an application;
   
(b)
obtains the agreement of each other party, or the permission of the presiding judge, to present the evidence.
  (3) A judge who gives permission to present evidence must consider ordering the corporate party to indemnify another party for expenses resulting from the error.
       
Use of discovery
18.20 (1) Answers given by a witness at discovery may be used to impeach the witness at trial, or on the hearing of an application or motion.
  (2) Evidence given by an individual party, or a designated manager, at discovery may be used for any purpose by an adverse party.
  (3) Evidence given by an officer or employee of a corporate party who is not a designated manager may be used for any purpose by an adverse party, except answers outside the witnesses’ scope of authority are not admissions by the corporate party.
  (4) Evidence given by a witness at a discovery may be used by any party against any party who had notice of the discovery, if it is necessary to provide the evidence through the discovery transcript.
  (5) The following are examples of cases in which it is necessary to provide evidence through a discovery transcript:
   
(a)
the witness cannot testify;
   
(b)
the witness is too ill or infirm to attend court, and commission evidence is not available or is inappropriate;
   
(c)
the court cannot compel the witness to attend the trial or hearing, and commission evidence is not available or is inappropriate.
  (6) A party who establishes all of the following may use evidence given by a witness at discovery against a party who did not have notice of the discovery:
   
(a)
it is necessary to provide the evidence through the discovery transcript;
   
(b)
the answers are sufficiently reliable, although the party against whom they are offered had no opportunity to cross-examine the witness;
   
(c)
it was through no fault of the party offering the evidence that the party against whom it is offered did not receive notice of the discovery.
  (7) A party who uses evidence given at discovery makes the person who gave the evidence a witness for that party only when the evidence is used as provided in Rules 18.20(4) and (6).
       
Proof of discovery questions and answers
18.21 (1) A transcript with the certificate and purported signature of a certified court transcriber is presumed to have been certified by a certified court transcriber and to be an accurate record of the discovery, unless the contrary is proved.
  (2) A party may tender an excerpt from a discovery transcript by agreement or by showing the judge the transcript and satisfying the judge that the proposed excerpt is covered by the certified court transcriber’s certificate.
  (3) After authenticity is agreed or established, excerpted questions and answers may be made part of the record by reading questions and answers into the record, tendering excerpts from the transcript as an exhibit, or any means directed by the judge.
  (4) The judge may permit a party to use excerpts from an audio recording or an audiovisual recording of a discovery if the corresponding excerpts from the discovery transcript are made part of the record.
       
Failure to attend or refusal to answer
18.22   A witness who fails to attend under a discovery subpoena or order, refuses to answer a question properly put at a discovery, or refuses to produce or provide access to a document, electronic information, or other thing required by a subpoena or order may be punished under Rule 89 - Contempt.
       
Supervision of discovery by judge
18.23 (1) A party who believes that a discovery is being conducted abusively may undertake to bring a motion to terminate or limit the discovery as soon as is practical, and adjourn the discovery to do so.
  (2) A judge may terminate or limit a discovery that is conducted abusively.
  (3) The following are examples of conduct that may be abusive:
   
(a)
asking a question or demanding production for a purpose ulterior to the preparation or advancement of a case;
   
(b)
questioning a witness in a manner calculated to annoy, embarrass or oppress the witness;
   
(c)
asking the same question repeatedly although it has been fully answered;
   
(d)
persistently asking questions that are clearly not relevant;
   
(e)
continuing to seek an answer to a question to which a party has clearly objected.
       
Examples of just, speedy, and inexpensive discovery
18.24 (1) The following are examples of circumstances in which, depending on the circumstances as a whole, holding a discovery would promote the just, speedy and inexpensive resolution of a proceeding:
   
(a)
a non-party witness has information properly obtained by discovery and there are no other reasonable means for obtaining the information, such as conducting an interview;
   
(b)
a designated manager was ill-informed on discovery and discovery of other corporate officers or employees is necessary to obtain information the designated manager should have provided;
   
(c)
a party gave undertakings at a previous discovery that have not been fulfilled as promised and, as a last resort, the information is sought through further discovery;
   
(d)
because of illness, the court will not be able to compel a witness to attend trial or to answer questions, and commission evidence is inappropriate without discovery.
  (2) The examples in Rule 18.24(1) are to assist both of the following:
   
(a)
a party who determines whether a discovery would promote the just, speedy and inexpensive resolution of a proceeding, for the purpose of Rules 18.02(1)(a), 18.04(2)(b), or 18.05(2)(a)(ii);
   
(b)
a judge who hears a motion to revoke a discovery subpoena under Rules 18.08(2) or 18.08(3).
       

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