Dow Chemical Company v. Nova Chemicals Corporation, 2012 FC 754
This Order was issued in 2012, but just made public now. The defendant brought a motion seeking to permit its experts to attend testing, for samples from the testing, and to file reply affidavits on the motion. The Court granted the motion.
In considering the reply affidavit issue, the Court held that the affidavits met the test for seeking reply, and admitted them. All three comment on evidence filed by the plaintiffs in response to the defendant’s motion. Cross-examinations had occurred on the affidavits. Furthermore, the Court held that there was no substantial or serious prejudice to the plaintiffs and the evidence would serve the interests of justice.
The defendant produced samples of its allegedly infringing product on the condition that its experts be permitted to attend and monitor the tests. The plaintiff refused on the basis of safety and privacy concerns at their facilities. The Court held that it is its practice to allow attendance of the opposing party at testing conducted in support of an action where the results are planned to be used at trial. Any experts appointed to attend the testing would be well aware of the safety issues. Furthermore, they would be covered by the protective order, and likely a confidentiality agreement. Thus, the privacy concerns are not warranted.