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CIVIL EVIDENCE - Letters rogatory or letters of request

Friday, April 16, 2021 @ 6:13 AM  


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Appeal by Matvil Corp. from an order compelling Matvil, a non-party, to produce its confidential and proprietary financial and valuation documents sought in a letter of request to assist the expert of parties to a U.S. action to calculate their damages using comparative industry data. One of the defendants in the U.S. action was Matvil’s main competitor. The respondent Actava was in the business of streaming Russian-language TV channels to customers in North America. Matvil was a private, Ontario-based global streaming service that re-transmitted content from the Russian TV Channels to subscribers. In 2018, Actava sued Russian TV Channels in the U.S. for engaging in an unlawful campaign to interfere with Actava’s business, including a referral agreement it had with Matvil from 2016 to 2018. To calculate Actava’s damages in the U.S. action, Actava’s U.S. damages expert wanted to calculate Actava’s damages by looking at Actava’s actual growth during the subject period and comparing it to the financial results of other comparable companies in the same industry. The only two other companies that legally provided Russian broadcasting services in North America were Kartina and Matvil. The contested production sought both pre-dated and post-dated information for the period during which the referral agreement was in effect. It was not limited to business carried on under the referral agreement but extended to Matvil’s entire global business and included not just raw data but also Matvil’s work product. Matvil argued the order failed to satisfy the test for enforcement of a letter of request and that the application judge erred in her application of the test and in her relevance and public policy analyses.

HELD: Appeal allowed. The application judge was not alive to the issues of breadth and purpose, the absence of any true linkage between the referral agreement and the productions sought, the relevance to the material issues in the U.S. pleadings, and the speculative nature of the request. The application judge erred in her determination of relevance. The failure to meaningfully address the relevance of the evidence sought constituted an error in principle warranting appellate intervention. It was contrary to public policy in the circumstances of this case to require Matvil to disclose the information sought given its sensitive nature. The application judge did not engage in any real balancing exercise and gave no consideration to Canadian sovereignty or whether justice required that the letter of request be enforced, and the evidence requested be produced. Had a comparable request for production been made in a proceeding in Ontario under Rule 30.10, the order would not have been granted. The application judge failed to recognize Matvil’s sovereignty interest and neglected to consider the justice of the case.

Actava TV, Inc. v. Matvil Corp., [2021] O.J. No. 784, Ontario Court of Appeal, J.M. Fairburn A.C.J.O., S.E. Pepall and L.B. Roberts JJ.A., February 19, 2021. Digest No. TLD-April122021010