Lexpert US Guides

LETTERS ROGATORY Procedure for Obtaining Letters Rogatory Once you determine that you have a witness resident in Canada unwilling to assist you in litigation, you must lay the appropriate groundwork for obtaining, and later enforcing, letters rogatory. These are intertwined processes, as the enforcement proceedings are often based on what was presented to the American courts through the initial application for the letters rogatory. An important preliminary step is to eliminate all other avenues for obtaining the evidence through the American courts. It may be, for example, that the evidence is in the control (if not the possession) of one of the American parties. In such circumstances, the parties should seek disclosure through the American courts, and to the extent necessary, apply for orders requiring that disclosure. Where evidence is not otherwise available, parties may consider applying for the issuance of a letters rogatory. Letters rogatory are often issued in a standard letter form, detailing the witness or witnesses to be examined, the evidence sought and other procedural tools for the gathering of the evidence (such as videotaping the live testimony). Since it is this document, the letters rogatory, which will form the basis for evidence gathering in Canada, it is important to have input from your Canadian counsel counterparts in drafting it and ensuring it has all requisite aspects necessary for your case. It is also important to consult with Canadian counsel at this early stage to ensure that the letters rogatory contain evidence requests that are enforceable in Canada, under Canadian law. In some American states, letters rogatory are applied for with pro forma material. American courts grant such applications, sometimes without a hearing and without notice to the other American parties. Such procedure is a recipe for trouble when enforcing the letters rogatory in Canada. It is far preferable to obtain the letters rogatory with notice to the other parties in the American litigation, so that they have few, if any, grounds to contest the enforcement in Canada (since, as we discuss below, they must be named as respondents to the Canadian enforcement proceeding so that they are bound by the court order). As well, it is important to have fulsome materials at the issuance application, including an explanation of how the evidence sought is relevant to the American proceeding and how it will assist the American court in deciding that case. There have been instances where the underlying American application materials for obtaining the letters rogatory were too "thin" on why the information was relevant to the American action, and the Canadian court refused to enforce those letters rogatory. Procedure for Enforcing Letters Rogatory Once the letters rogatory has been signed and issued by the American court, a certified copy should be obtained and forwarded to Canadian counsel. That document will be appended to a petition, which will set out the procedural history of the American proceeding, the reasons for the letters rogatory and detailed information regarding the evidence sought. This material will often mirror much of the information contained in the fulsome American issuance material, but set out in such a way as to conform with Canadian pleadings requirements. Accompanying the petition will be one or more affidavits that provide the Canadian court with sworn testimony, which must be on personal knowledge, not information and belief, that the contents of the petition are true. Given the nature of the petition, which includes litigation history, the affidavit is often sworn by counsel in the American action who has personal knowledge of the events. That affidavit may attach documents that provide support for enforcement, including the pleadings in the American proceeding. Once filed, the proposed Canadian witness and the other parties to the American proceeding must be served with the Canadian enforcement materials. It is common for the American parties to take no position on enforcement (or to consent to enforcement) and to waive the right to respond, provided they are given the opportunity to review the evidence obtained through the letters rogatory process. Once served (individuals must be personally served and corporations may be served according to the relevant provincial incorporation statute), the proposed Canadian witness will have an opportunity to file a response and contest the enforcement of the letters rogatory. It will be in the discretion of the Canadian court whether to enforce the letters rogatory with, or without, modification. Of course, you can always negotiate with the witnesses about enforcement of the letters rogatory, the result of which should be encapsulated in an entered Canadian court order. In fact, the enforcement of most letters rogatory is resolved this way. Engaging the Discretion of the Canadian Court The examination of a Canadian witness under letters rogatory is fundamentally different from a traditional American deposition in several respects. Most importantly, the examination is not a deposition-style discovery of a potential witness. Rather, it is American counsel calling their own witness at trial. Everything about enforcing the letters rogatory in Canada flows from that key difference. Letters rogatory from foreign courts are generally granted, unless they are contrary to Canadian public policy or otherwise prejudicial to Canadian sovereignty or citizens. Enforcement of letters rogatory in Canada is governed by the Canada Evidence Act and equivalent provincial legislation. In exercising their judicial discretion whether to enforce letters rogatory under these statutes, Canadian courts generally consider: > whether the evidence sought is relevant to the foreign lawsuit; > whether the evidence is necessary for the foreign lawsuit and will be introduced at its trial if admissible; > whether the evidence is obtainable in any other way; > whether enforcing the letters rogatory would be contrary to Canadian public policy; > whether any documents sought to be produced are identified with reasonable specificity; and > whether enforcing the letters rogatory would be unduly burdensome to the Canadian witness, having in mind what he or she would be required to do were the lawsuit tried in Canada. There is a wealth of Canadian jurisprudence on these considerations, emphasizing the importance of early coordination between American and Canadian counsel to ensure that the letters rogatory obtained from the American court addresses these considerations properly. The jurisprudence interpreting and applying these considerations highlight several differences between American and Canadian approaches to litigation. Some brief examples: > In considering relevance, Canadian courts want to understand why the evidence sought is relevant to the American proceeding. Relevance is based on the Canadian standard, focusing primarily on how the evidence sought relates to issues raised in the pleadings of the underlying American action. > Evidence sought must not only be relevant to the American proceeding, but also necessary to it. Consequently, broad-reaching "fishing trips" for evidence in Canada are rarely successful. > The likelihood of successfully enforcing a request for evidence through a letters rogatory is greatly increased where that evidence is only obtainable through enforcement. If there are other options for www.lexpert.ca | LEXPERT • December 2013 | 33

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