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CIVIL PROCEDURE - Discovery - Scope - Production by non-parties

Monday, June 04, 2018 @ 8:47 AM  


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Appeal by the plaintiffs from an order requiring them to obtain an order of the Superior Court before taking any step in furtherance of a subpoena issued by a US Court pursuant to an ex parte application. The plaintiffs’ proposed class action alleged the defendants conspired to fix prices in the foreign exchange market by communicating using electronic chatrooms hosted by Bloomberg LP. The plaintiffs alleged that in plea agreements entered into with the United States Department of Justice, several defendants admitted to participating in the electronic chatrooms. The plaintiffs obtained an ex parte order for a subpoena against Bloomberg, a non-party, for the production of transcripts of chatrooms of currency traders. The motions judge found the material before the US Court was not accurate or complete and the procedure used by the plaintiffs had not met the requirements of the Rules of Civil Procedure for production by a non-party.

HELD: Appeal dismissed. The motion judge did not err in law in finding the plaintiffs could not use s. 1782 of 28 United States Code to circumvent the Rules of Civil Procedure. Given the action had yet to be certified, discovery was limited to evidence relating to certification issues only. The motion judge did not make a palpable and overriding error in his finding that the test for an anti-suit injunction did not apply or that the plaintiffs’ application for the subpoena was misleading.

Mancinelli v. Royal Bank of Canada, [2018] O.J. No. 2015, Ontario Superior Court of Justice - Divisional Court, S.N. Lederman, F.P. Kiteley and A. Doyle JJ., April 16, 2018. Digest No. TLD-June42018002