Examination for Discovery: Attendance of Parties

When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?

In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party.  The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative.  Master Glustein permitted the representative to attend.  A corporation has the right to attend examinations for discovery as an independent legal entity.  The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions.  The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel.  The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.

This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.

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