Voltage Pictures LLC v. John Doe, 2015 FC 1364

TekSavvy has successfully appealed in part an earlier costs order relating to a motion to compel a non-party pursuant to Rule 238 (We previously summarized the motion during the week of February 25, 2014). TekSavvy was ordered to produce the names and addresses of subscribers associated with roughly 1140 Internet Protocol ("IP") addresses, which Voltage had identified as engaging in the infringement of their copyrights.

The original costs order assessed the reasonable legal costs, administrative costs and disbursements incurred by TekSavvy in complying with the production of the names and addresses. The original costs order provided that Voltage would pay TekSavvy its costs of $21,577.50 before TekSavvy would be required to release the requested information, and allocated no costs to the assessment itself or to the motion on the merits.

The Court held on appeal that there is nothing in the jurisprudence that suggests that an innocent party must be made whole, fully indemnified or compensated on a "but for" damage-like causation basis for any and all costs incurred in connection with a motion for a Norwich-type order. However, the Court noted that this is not to say that although indemnification of costs incurred in a Norwich-type order are normally limited to those incurred in the motion and in abiding with the order, that greater indemnification cannot be awarded for the consequential costs arising as a result of the motion.

The appeal of the costs order was allowed in part and awarded TekSavvy an additional amount of $11,822.50 in costs. This included further costs in the amount of $4,322.50 for the "second check/QA verification" task and legal costs of $7,500 on the motion itself.