The case concerns an action for damages pursuant to s.8 of the NOC Regulations and a counterclaim for damages for patent infringement. Both Apotex and Lundbeck brought motions for Letters Rogatory seeking the assistance of foreign Courts to secure testimony of people living outside of Canada.
Apotex sought to compel the testimony of Dr. Adlington, an expert witness in a case between Lundbeck and Lagap in the UK. Lagap sourced its product from Matrix, the same named company from which Apotex sources its product. The UK testimony dealt with the nature of the Matrix processes and whether it could operate on an industrial scale. The Court held that Apotex must satisfy the Court that there is a good reason why the witness cannot be brought before the Court in Canada or will not attend trial. The Court considered the evidence on the record regarding Dr. Adlington’s alleged obligations of confidentiality and held that Letters Rogatory would not be appropriate or effective in addressing the application of confidentiality orders issued by the English High Court. Furthermore, the Court held that as Dr. Adlington’s proposed evidence appeared to involve the expression of an opinion, and as no expert statement had been served or filed, objections would undoubtedly be raised requiring immediate rulings. Thus, it is essential for any testimony to be given in the presence of the trial judge and not out of Court.
The Court ordered that Lundbeck should have discovery of a representative of Apotex’ supplier, Matrix, as Apotex has advised that they intend to have a representative of Matrix appear at trial to give oral testimony regarding the process used to make citalopram during the period from 2001-2004. Batch records detailing that production have been destroyed by Matrix seemingly in contrast to Matrix’s own document retention policy. The Court further ordered that the discovery be made of the same individual or individuals who will be testifying at trial on behalf of Matrix.