Just Because You Have It Doesn't Mean You Should Use It – Trials and Discovery Evidence
As I’ve previously discussed, one of the main purposes of an examination for discovery is to ‘discover‘ evidence that can help your case or hurt your opponents.
After a discovery a lawyer can read relevant portions of the transcript in at trial and the evidence can have the same weight as if it was given live in Court. However, just because you have evidence obtained from a discovery does not mean it should be used.
If you read evidence in that advances your opponents case (or that contradicts yours) the Court can rely on this to dismiss your lawsuit. Reasons for judgement were released today by the BC Court of Appeal discussing this principle and some of its limits.
In today’s case (Duncan v. Mazurek) the Plaintiff, a pedestrian who was jay-walking, was struck by the Defendant’s vehicle. At trial both the Plaintiff and the Defendant were found at fault. The Defendant successfully appealed and a new trial was ordered. Before reaching this verdict the BC High Court had the opportunity to discuss the weight of discovery evidence at trial.
During the trial the Plaintiff read in portions of the Defendant’s examination for discovery. Some of the evidence apparently contradicted the evidence supportive of the Plaintiff’s case. The Defendant argued that doing this amounted to the Plaintiff adopting the Defendants evidence and leaving the trial judge with no choice but to accept it. The BC Court of Appeal disagreed however provided the following caution about reading in unhelpful evidence from a discovery transcript:
 The defendant, relying on Chetwynd-Palmer v. Spinnakers,  B.C.J. No. 95 (S.C.) and Tsatsos v. Johnson (1970), 74 W.W.R. 315, says that by reading in that discovery the plaintiff adopted and approbated his evidence, and the trial judge is not entitled to reject it and choose a different version more favourable to the plaintiff. I am not convinced those cases go that far. While the plaintiff may be at some risk in reading in such evidence as part of her case, where there is contradictory evidence it is my view that the trial judge must retain discretion to weigh it all in reaching his findings
Before you read in discovery evidence ask yourself if the evidence helps your case or hurts your opponents. If the answer is no to both questions you should think twice before letting the evidence go before the Court.