Understanding Undertakings, Under Advisements and Refusals in Legal Examinations

Hi Everyone, it's Kristy from Clearly Legal.

Let's chat today about what comes after the EFD.

When you attend examinations for discovery (EFDs), you consider document disclosure and identifying missing or new information. During EFDs, the questions you ask will create undertakings, under advisements, and refusals.

What Are Undertakings in Discoveries?

Undertakings are promises made by one party to provide specific documents or information that were not immediately available during the examination. These are commitments to produce the requested material later.

Undertakings are important because they:

• Ensure transparency and cooperation between parties

• Fill gaps in the disclosed evidence

  
  

Managing undertakings well means tracking deadlines and following up promptly. If you receive an undertaking, note the exact documents or information promised and the date by which they should be delivered. This keeps the process moving smoothly and prevents delays.

What Does Under Advisement Mean?

When the other side responds with under advisement, they indicate that they need time to review the request before deciding whether to provide the documents or information. This response often arises when the request is complex, sensitive, or requires legal review.

Handling under advisements requires patience and clear communication. You should:

• Ask for regular updates on the status

• Clarify the scope of the review

• Decide if you need to challenge the refusal through a motion to compel or other legal means

  
  

Keeping track of under advisements helps you understand what information might still be forthcoming and plan your case accordingly, and gives the lawyer a sense of what the other side is considering withholding, and how to manage that.

What Are Refusals and How to Deal With Them?

Refusals are straightforward: the other party declines to provide the requested documents or information. Refusals can happen for various reasons, such as claims of privilege, the position the document has no relevance, or confidentiality or the other side just does not want to produce (possibly because it does not help them at all).

When you encounter refusals, consider the following steps:

• Request a clear explanation or basis for the refusal

• Evaluate whether the refusal is justified under the rules of discovery

• Decide if you need to challenge the refusal through a motion to compel or other legal means

  
  

Understanding refusals helps you identify potential roadblocks and decide how aggressively to pursue the information.

Practical Tips for Managing Undertakings, Under Advisements, and Refusals

Successfully navigating these responses after discoveries requires organization and clear communication. Here are some practical tips:

• Document everything: Keep detailed records of all undertakings, under advisements, and refusals, including dates and descriptions.

• Set reminders: Use calendars or case management tools to track deadlines for undertakings and follow-ups on under advisements.

• Communicate clearly: Confirm requests and responses in writing to avoid misunderstandings.

• Be proactive: If you notice delays or vague responses, address them early to keep the process on track.

• Seek expert help: Managing undertakings and related tasks can be time-consuming.

  
  

The biggest practical tip I can give you - hire me to do this organizing and managing for you. Contact me at kristy@clearlylegal.ca and we'll chat.