Letters Rogatory: Examination of Non-Parties

Recently, the British Columbia Supreme Court granted an Order allowing plaintiffs to examine non-parties to an action in Missouri, pursuant to Letters Rogatory issued by the Missouri court. Letters Rogatory, or Letters of Request, is a request for assistance from a foreign court. While the enforcement of Letters Rogatory is discretionary, such requests should be honored wherever possible.

The plaintiffs entered into two agreements with the individual defendant to retain his services to train its staff and to purchase some intellectual property. When the relationship between the parties ended, the plaintiffs sued the individual defendant and its competitor, RPC for, inter alia, conspiracy and breach of contract in Missouri, USA. The Missouri case dismissed the action against RPC. The plaintiffs then sued RPC in British Columbia.

The Missouri court issued Letters Rogatory, asking the British Columbia court to order an examination of the RPC defendants to obtain evidence for the Missouri trial. The court found that the factors a court must consider to enforce letters rogatory include: relevance; whether the evidence is necessary for trial and will be adduced at trial if admissible; whether the evidence is otherwise obtainable; whether the order sought is contrary to public policy; whether any documents sought are identified with reasonable specificity; and whether the order sought is unduly burdensome.

The court granted the Order to examine the RPC defendants, but cautioned that these examinations should not be used in substitution of or in addition to discovery in this action. The court, however, refused to grant an Order to set aside the implied undertaking rule to use the evidence from the depositions in the Missouri action pursuant to the Letters Rogatory in the BC action.

Ruzbeh Hosseini is an associate who practices in the business litigation and cross-border litigation groups. Ruzbeh is regularly involved in the development of litigation strategy and he has appeared in the Ontario Superior Court of Justice and Ontario Court of Appeal on behalf of clients. Prior to joining Cambridge LLP, Ruzbeh practiced law as a litigator at two mid-sized boutique firms in Toronto.

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