In a case of patent infringement, the Case Management Prothonotary had ordered Hospira to produce a further and better Affidavit of Documents pursuant to an earlier motion by the Plaintiffs. Hospira’s appeal of this order was dismissed.

One focus of the motion was batch production records and both parties conceded that those records would be the direct evidence of the process actually used by Hospira’s supplier for the manufacture of its product and thus, the direct evidence of whether there is infringement. However, Hospira argued that its ANDS documents should be presumed to be true, thus the batch records need not be produced. The Court rejected this argument.

The Court held that the Prothonotary focused on the correct test regarding relevance of documents. In particular, whether it was reasonable to suppose that the documents sought would undermine Hospira’s case, advance Lilly’s case, or would fairly lead to a train of inquiry which would have either of those consequences. The Motions Judge found that there was sufficient evidence to support the findings made by the Prothonotary and upheld the production of further documents.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2009/2009fc1316/2009fc1316.html