Obtaining U.S. Discovery In Aid Of Canadian Litigation.
Mondaq Business Briefing › Nbr. 2009, January 2009
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Extract
Obtaining U.S. Discovery In Aid Of Canadian Litigation.
Originally published in the February 2009 edition of Commercial Litigation Review.
In virtually every commercial case, we look for "hot documents" – those documents that tell the story with such impact that no witness could deny their truth. When a party fails to produce these documents, we go looking for them in the hands of non-parties. Canadian civil procedure allows for the discovery of this evidence, but typically only with leave of the court and only upon demonstrating fairness and necessity. As a result, orders for discovery of non-parties are the exception, not the norm, in Canada. Often, non-party evidence is simply out of reach of Canadian litigants. All is not lost, however: the evidence may be located in the United States. U.S. federal law empowers district courts to permit any interested party to obtain discovery for use in a foreign proceeding from a person located in the district, even if this evidence could not be accessed under the rules governing the foreign proceeding.1 This legislative provision opens the door to Canadian parties gathering highly relevant inform...See the full content of this document
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