Category: Non-party

When seeking leave under Rule 31.10 to examine a non-party, the moving party must establish that there is good reason to believe that the non-party has information relevant to a material issue, that the moving party has been unable to obtain the information from the other parties to the action as well as from the non-party that he wishes to examine, and that there has been a refusal, actual or constructive, to obtain the information from the other parties to the action and the non-party.

Following the Plaintiff’s examination for discovery, the Defendant sought an order requiring the Plaintiff’s wife to be examined for discovery. The basis for the request was that the Plaintiff had sustained a traumatic brain injury and serious memory loss as a result of the MVA and could not answer the questions posed to him on discovery. In considering Rule 31.10, the court permitted the examination of the Plaintiff’s wife in these circumstances. The court noted that the examination of a non-party should be rarely ordered, but was appropriate in this case given the Plaintiff’s inability to answer, in any detail, questions relating to his pre and post-accident life.