A recent Ontario court decision (Arctic Cat Inc. et al. v. Peter Watson, 2014 ONSC 6874 (CanLII)) dealt with a foreign letter of request, or “letter rogatory” in a cross-border patent infringement case involving the invention of snowmobile prototypes. This type of request is used where a foreign (usually an American) litigant wishes to compel evidence and testimony from a Canadian witness. In this case, the testimony of the Canadian inventor was needed in the US litigation, but the Canadian individual falls outside the jurisdiction of US courts. The letter of request bridges that gap by requesting a Canadian court to order the individual to be provide evidence.
These are the factors which guide the court in Canada on whether to enforce such letters of request:
- the evidence sought must be relevant;
- the evidence must be necessary for trial and will be adduced at trial, if admissible;
- the evidence must not be otherwise obtainable;
- the order sought is not contrary to public policy;
- the documents are identified with reasonable specificity; and
- the order sought is not unduly burdensome, bearing in mind what the witness would be required to do and produce if the lawsuit was in Canada.
After reviewing these factors, the Ontario court granted the letter of request, compelling the inventor to provide testimony in the US patent litigation.