Withholding Information to Impeach a Witness

In legal actions, there is a general rule that each party must disclose all of the documents in their possession that are relevant to the case. However, there are some exceptions to this rule. One exception is that information can be withheld in order to impeach the credibility of a witness at trial. In other words, a party can choose not to inform another party about the existence of a document, and then suddenly reveal it at trial to make the other party appear less credible. The recent case Grover v. MacQuarrie’s Drugs Limited, 2023 NSSC 289, explores when this interesting legal tactic can be used and when disclosure is required.


Key Terms

Before analyzing the case, there are some legal terms that must be defined.

Disclosure: A party discloses a document, video, photograph, etc., by making the other party aware of its existence. Under Rule 14.08 of the Nova Scotia Civil Procedure Rules, all information that is relevant needs to be disclosed.

Relevance: Under Rule 14.01 of the Nova Scotia Civil Procedure Rules, information is relevant if it makes a material fact more or less likely.

Litigation Privilege: Under Rule 14.05 of the Nova Scotia Civil Procedure Rules, information that is privileged does not need to be disclosed. The case, Grover v. MacQuarrie’s Drugs Limited, discusses litigation privilege, which protects communications and documents that are created to advance a legal action, such as an e-mail between a lawyer and their client discussing their legal strategy.

Impeach: A witness is impeached when evidence is put forth that undermines their testimony and makes them appear less credible, reliable, and trustworthy.


The Facts of the Case

In this case, the Plaintiff, Ms. Grover, was attending a pharmacy owned by the Defendant. A walker was being stored on top of a drink cooler in the pharmacy. The Plaintiff opened the cooler to reach for some milk when the walker that was on top of the cooler fell and struck the Plaintiff, which caused her to fall into a display rack.

The Defendant had CCTV footage of the  incident, which they were withholding in order to impeach the Plaintiff at trial. The plaintiff became aware of the existence of the video footage, which had not been disclosed to them. The contents of this video could potentially determine the outcome of the case: if the footage matched the Plaintiff’s description, the Plaintiff’s claim would surely succeed. The Plaintiff made a motion to have the CCTV video footage disclosed and produced, which the Defendant opposed.


Can Relevant Information Be Withheld?

Under Rule 94.09 of the Civil Procedure Rules, information can be withheld if it is used to impeach a witness. However, this rule is inconsistent with Rule 14.08 which requires parties to disclose all relevant information. The key question addressed by Justice Norton in Grover v. MacQuarrie’s Drugs Limited, 2023 NSSC 289, is whether information that is relevant, and is not protected by litigation privilege, can still be withheld in order to impeach a witness.

To resolve this apparent contradiction, Justice Norton cited the case, Hawboldt v. Cahill, (1995) 1995 CanLII 4491 (NS SC), 142 NSR (2d). In Hawboldt, the judge wrote that this contradiction is only solved by “limiting the admissibility to use on cross-examination for the purpose of contracting and impeaching the witness and not as a mechanism whereby one party may introduce it as part of its evidence” (paragraph 27).

A party would have a large advantage if it could withhold key evidence under Rule 94.09 to impeach a witness and also introduce the evidence to support its case. Instead, the court limited the use of evidence that is withheld to make the application of Rule 94.09 more fair. Applying Rule 94.09 involves a tradeoff: the Defendant can withhold evidence until trial for the purposes of impeachment, but the evidence cannot be used for any other purpose at trial.


Withhold With Caution

After reviewing the case law, Justice Norton permitted the Defendant to withhold the evidence but he advised them to proceed carefully. In this case, the CCTV footage may be the most important piece of evidence. If this evidence is withheld improperly or is introduced for purposes other than impeachment, there would be significant consequences. Applying Rule 94.09 incorrectly could lead to a mistrial.

In addition, if the CCTV footage truly does undermine the Plaintiff’s testimony then using it solely for impeachment purposes (and not the truth of its contents) could be a strategic blunder. The judge allowed the Defendant to continue to withhold the footage but advised them to proceed with caution.

You may wonder whether Rule 94.09 allows parties to bluff. In this case, we do not know what the CCTV footage actually shows. Suppose the CCTV footage shows that the plaintiff’s testimony was truthful except for some minor detail; for instance, perhaps their description of the colour of the walker was inaccurate. The Plaintiff, convinced that the CCTV footage may somehow undermine their credibility, may agree to a relatively low settlement to avoid being impeached. In short, by withholding otherwise insignificant evidence, a party could create a valuable bargaining chip. It is important to have an experienced lawyer on your side to respond appropriately to these types of legal tactics.


Do You Need a Litigation Lawyer?

The case of Grover v. MacQuarrie’s Drugs Limited, 2023 NSSC 289 exemplifies the complexities of litigation. Some of the legal rules are inconsistent with each other. Parties may opt to withhold evidence or employ other legal tactics. A seemingly simple case can quickly become multilayered and complicated.

For these reasons, it is important to be represented by an experienced lawyer. If you are considering bringing a legal claim, contact Wagners. We offer free consultations, and can speak with you about your legal options and the merits of your legal claim. Call Wagners today at +1-902-425-7330 or toll-free at +1-800-465-8794.

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