Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 2015 FC 1176

In this patent infringement action, the defendants sought to compel answers refused on discovery. The Prothonotary heard the motion and dismissed it with respect to a number of questions. The defendants appealed those refusals and the Federal Court dismissed the appeal.

The Court discussed the history of the case, including patent conflict proceedings, US interference proceedings and the fact that approximately 1200 questions were refused by each side on discovery. The plaintiffs sought answers to 72 of those, while the defendants initially sought answers to 940 questions. These numbers were later reduced to 6 and 450.

The Court held that “it will be a rare occurrence when it can be shown that the denial of further discovery will be vital to the outcome of a case” (para 15). Thus, if the Prothonotary did not exercise his discretion based upon a wrong principle or a misapprehension of the facts, considerable deference applies. The Court then considered the principles of discovery and held that the “simple fact that a question is ‘relevant' does not mean that it must inevitably be answered... relevance is always subject to the overriding discretion of a Prothonotary to control abuses of the discovery process.” (para 21). To state that relevance is a matter of law is not entirely correct; as the law establishes whether a question is relevant, but discretion is then applied as to whether, nonetheless, it is appropriate to Order an answer to be given. The Court found no reason to interfere with the Prothonotary's decision.