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CIVIL EVIDENCE - Letters rogatory or letters of request

Thursday, March 04, 2021 @ 6:06 AM  

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Motion by the appellant for a stay pending appeal of an order enforcing Letters Rogatory. The order required the appellant to produce the documents and examinations requested in Letters Rogatory and to provide a competent representative with direct knowledge of the facts in issue to appear for deposition under oath in a proceeding commenced in Arizona by the respondent. The appellant was not a party to the Arizona proceeding. In the Arizona proceeding, the respondent alleged misappropriation of intellectual property and trade secrets related to its system of packaging cannabis products. Its request of the Arizona Court for Letters Rogatory claimed the production and evidence sought from the appellant would be relevant to the issues in the Arizona proceeding because, according to the respondent, the appellant wrongfully conspired with Marciniak and Pogue and others to jointly form a copycat packaging company, Nitrotin, incorporated in B.C. Marciniak and Pogue had not yet been discovered by the respondent in the Arizona proceedings.

HELD: Motion allowed. The exceptional nature of non-party discovery in Nova Scotia and the fact that the respondent had still to discover parties to the Arizona proceeding, Marciniak and Pogue, was a relevant issue for appeal with possible implications for Canadian sovereignty and public policy. The appellant raised arguable issues in relation to the enforcement of the Letters Rogatory and whether the applications judge sufficiently scrutinized the Letter of Request in the circumstances. Pretrial discovery was not completed in the Arizona proceeding, the pleadings for that proceeding were not before her, and she resorted to the appellant’s similar Nova Scotia action to satisfy herself that the respondent should receive production of all the evidence it was seeking. The appellant would experience irreparable harm if a stay was not granted since, by the time its appeal was heard, the evidence would have been produced. If there had been any errors in the order enforcing the Letters Rogatory, there would be no opportunity for correction and no appellate clarification of what was required in such applications. Once the enforcement of the Letters Rogatory proceeded, the appellant’s right of appeal became purely academic. Only a stay could prevent the irreparable harm that followed from compelled production and the loss of the right of appeal. The respondent produced no evidence it would suffer prejudice because of the delay associated with the appellant’s appeal. If the appellant was unsuccessful in its appeal, the Letters Rogatory would be enforced pursuant to the application judge’s order.

3277991 Nova Scotia Ltd. (c.o.b. Truro Cannabis Inc.) v. N2 Packaging Systems, LLC, [2021] N.S.J. No. 2, Nova Scotia Court of Appeal, A.S. Derrick J.A., January 4, 2021. Digest No. TLD-March12021007