Some Practical Tips Before You Get Started The United States and Canada have enjoyed one of the closest economic relationships of any two countries in the world. As a consequence, when commercial disputes arise in the U.S., it is not uncommon to learn that evidence important to resolving these disputes will be found in Canada in the form of documents and/or witnesses with knowledge of relevant facts. However, U.S. lawyers attempting to obtain discovery from non-party fact witnesses in Canada are often surprised to learn the process can be time-consuming and expensive. In addition, the prospects of obtaining the evidence are not guaranteed.

Nevertheless, with some advance planning and an understanding of the fundamental components of the Canadian system, litigants in the U.S. can obtain the evidence they need to prepare for trial or otherwise advance their claims or defenses. The following discussion provides some general advice on how to obtain non-party discovery in Canada.

Discovery from Non-Parties in Canada is More Limited Than in the U.S.

Lawsuits in Canada are generally considered to be private disputes between the parties to the litigation. As such, in most Canadian jurisdictions, courts are reluctant to compel a stranger to a lawsuit to participate in the pre-trial discovery process. Therefore, unlike in the U.S., obtaining evidence from a non-party usually requires leave of court.

To obtain leave of court when required, litigants must show the evidence sought is relevant to a material issue in the action, the litigant has not been able to obtain the evidence from another available source, it would be unfair to require the litigant to proceed to trial without the evidence, and obtaining the evidence would not entail unreasonable expense or unfairness to the non-party. This is a high burden. When it cannot be met, litigants are expected to either obtain the information from the non-party voluntarily, or proceed to trial without the advantage of pre-trial discovery.

Moreover, the scope of discoverable information in Canada is much narrower than in the U.S. In Canada, it is not enough to show the information sought could lead to the discovery of admissible evidence; rather, the evidence must actually be relevant to the matters in dispute. Accordingly, when leave is granted, the range of information requested from a non-party witness must be narrowly tailored to the matters in dispute. Fishing expeditions will not be permitted.

Letters Rogatory Issued by a U.S. Court Must Satisfy Canadian Law

When U.S. litigants are in need of assistance in obtaining discovery from witnesses in Canada (which normally occurs through "letters rogatory" or "letters of request"), Canadian courts are generally prepared to provide that assistance. However, this willingness to cooperate is not unlimited. As Canadian courts often note, letters rogatory issued by foreign courts will not be honored when the request is contrary to the public policy or otherwise prejudicial to the sovereignty of the Canadian jurisdiction. In this regard, as a fundamental component of Canadian sovereignty, courts consider the burden and expense placed on the witness in responding to the request in light of what the witness would be required to do if the case had been brought in Canada. In other words, Canadian sovereignty is infringed when a U.S. court requests discovery from a Canadian witness that goes beyond what the witness would be required to do in the normal course of a domestic lawsuit.

In determining whether to enforce letters rogatory, Canadian courts are guided by the rules stated above with respect to the production of evidence from non-parties in domestic lawsuits. In particular, letters rogatory must show the evidence sought is relevant to the matters in dispute, the evidence is not otherwise obtainable, and the request is not unduly burdensome to the witness. However, mere recitals to this effect in the letters rogatory will not be sufficient. Canadian courts will make an independent determination with respect to the true purpose behind the letters rogatory and will give effect to them only if the examining judge is satisfied the request complies with Canadian law and does not infringe Canadian sovereignty.

The Process Can Be Expensive and Time-Consuming, Particularly if Not Done Properly

To be given effect, the letters rogatory must be issued by the U.S. court and presented to the appropriate Canadian court through an application for enforcement. The non-party witness must be made a party to the application and will have an opportunity to object or otherwise respond to the application. In addition, the parties will have an opportunity to present testimony and conduct limited discovery with respect to the enforcement of the letters rogatory, all of which can render the process expensive and time-consuming. Moreover, under the Canadian system, the non-prevailing party in a court action normally must pay the prevailing party's legal fees with respect to the action. As such, if the letters rogatory are denied, the applicant could be required to pay the legal fees incurred by the non-party witness in responding to the application.

Here are some practical tips to consider:

Tip 1 – Plan in advance.

It is important to consult with experienced Canadian counsel as early on in the process as possible, preferably well before the request for letters rogatory is drafted. A lawyer practicing in the jurisdiction where the witness is located can provide practical advice with respect to whether the information sought is discoverable and can assist in drafting the request for letters rogatory so that it will comply with local law. By seeking advice from Canadian counsel early on, U.S. litigants will be in better position to draft letters rogatory with a high probability of being enforced, which will render objecting to their enforcement much less attractive to the witness, thereby reducing the costs and time involved in the process.

Tip 2 – Make narrowly tailored requests.

Canadian courts are generally suspicious of fishing expeditions and will be extremely reluctant to compel a Canadian witness to participate in one. For instance, a request for "any and all" documents of a certain category, or a request to depose a witness on a broad range of topics, is not likely to be enforced. Therefore, a request for documents or oral testimony must be narrowly tailored to specific material evidence that cannot be obtained through any other source. Further, courts in Canada may be reluctant to modify the scope of letters rogatory to comply with Canadian law. As such, unless the letters rogatory can be enforced in their entirety, there is a chance the court will deny them in their entirety, leaving the requesting party with no relief whatsoever and an order to pay the costs of the opposing party.

Tip 3 – Give plenty of time.

Because the application to enforce letters rogatory is essentially an adversarial court proceeding, it can take several months to obtain an order from the court to enforce the letters rogatory. It is important to keep in mind the application process is not perfunctory, and in many instances can be susceptible to long delays. Engaging Canadian counsel early on in the process can help reduce delays and get the information needed as quickly as possible.

With so much time and expense at risk, it is important to take a considered approach to obtaining evidence in Canada, particularly if the information at issue has a high value to the case.