The Lexpert Guides to the Leading US/Canada Cross-Border Corporate and Litigation Lawyers in Canada profiles leading business lawyers and features articles for attorneys and in-house counsel in the US about business law issues in Canada.
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LETTERS ROGATORY Under Canadian law, the evidence obtained under a letters rogatory must be for use in the trial of the American proceeding, and is akin to American counsel calling their own witness at trial. Everything about enforcing letters rogatory flows from this trial-focus. obtaining the evidence, those must be exhausted prior to the commencement of enforcement proceedings in Canada. > Under Canadian law, the evidence obtained under a letters rogatory must be for use in the trial of the American proceeding. Consequently, it is preferable to ensure that you seek in your letters rogatory all evidence necessary to allow any documents obtained to be actually used in that trial — including evidence relating to the authentication and custody or copying of documents, to overcome any possible admissibility objections. Letters Rogatory Enforcement and Cost-saving Tips Ask the Witness to Volunteer the Evidence First For letters rogatory to be enforceable in Canada, the evidence must not be obtainable any other way — meaning the American parties cannot obtain the evidence from each other or non-party witnesses through the American action and the Canadian witness has refused to voluntarily produce the information. Practically speaking, this requires the evidence before the Canadian court to include a request to the witness to provide the necessary evidence and their refusal to do so. (Of course, if the witness does produce the requested information there is no need for letters rogatory.) Be Focused and Specific Again, an examination under a letters rogatory is not a deposition. Be focused and specific in your requests for documents and topics for examination. Explain the relevance of all evidence sought in the materials supporting issuance of the letters rogatory with reference to the issues raised in the American pleadings. Failure to do so may result in the letters rogatory not being enforced, regardless of what additional information later is supplied to the Canadian courts. Set Out Everything Needed The enforcement of the letters rogatory will be limited by its terms. If you don't ask for it, you won't get it. The Canadian court will not give you something the American court has not asked it to give you. Consequently, be sure to include in the letters rogatory the correct personal and corporate names of the witnesses. Be sure to include, if applicable, whether you seek to examine the witness in his or her personal or representative capacity. If you want a transcript or videotape of the examination, ask for it in the letters rogatory. If you want a specific person to oversee the 34 | LEXPERT • December 2013 | www.lexpert.ca process (as a "commissioner"), ask for that person by name or title. Make sure that appropriate "alternative" language is included, so that the Canadian court can substitute a different commissioner in place of the requested one if necessary. Talk to Opposing Counsel First Organize several dates for the examination of the witness that work for all the parties involved in the American litigation. This will allow Canadian counsel to more easily schedule the examination. Be Wary of Confidentiality Issues To enforce the letters rogatory, as mentioned above, Canadian counsel must file in court a petition with supporting materials. That supporting material may include documents subject to a confidentiality order or agreement in the American jurisdiction. Be sure to obtain prior approval for use of such documents in enforcing the letters rogatory, as all documents filed with the Canadian court will (absent a hard-to-obtain sealing order) be public. Poor Drafting Will Increase Costs If the American application materials for obtaining the letters rogatory are "thin," the Canadian courts may refuse to enforce the letters rogatory. In some circumstances, the court may allow the parties to apply again if better materials are supplied to the American court and new letters rogatory issued. Avoid the substantial extra costs of that process by drafting complete material for your application for letters rogatory in the first place. You May Have to Pay Costs of the Witness As the Canadianresident witness is being compelled to give evidence in a case to which they are not a party, the Canadian courts will likely grant him or her some compensation for his or her preparation and examination. That amount is entirely within the discretion of the court. In a document-heavy case, it could be significant. Before embarking on this process, consider how important the witness's evidence really is to the American lawsuit. Perhaps consider a cost-sharing agreement with opposing parties in the American litigation. Be sure to preserve any rights you may have to be reimbursed for costs related to the examination in the American litigation. The Court May Impose Restrictions Just because an evidentiary