Apotex Inc. v. H. Lundeck A/S

Apotex Inc. v. H. Lundeck A/S

Apotex failed to demonstrate a good reason why Dr. Adlington could not or would not attend trial in Canada given Matrix's written limited waiver and the English Orders' terms; therefore letters rogatory to compel his out‑of‑court testimony were inappropriate and, if called, his evidence should be given in the presence of the trial judge. By contrast, Lundbeck satisfied the statutory criteria for leave to examine a third party: Matrix possessed relevant information, had not cooperated fully through Apotex, contemporaneous records were reportedly destroyed, and it would be unfair not to allow pre‑trial discovery of the Matrix representative; accordingly Lundbeck was granted leave to seek...

Citation
2011 FC 88
Parties
Plaintiff/defendant by Counterclaim: Apotex Inc.; Defendants/plaintiffs by Counterclaim: H. Lundbeck A/S and Lundbeck Canada Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
26 January 2011
Procedural Posture
Civil — Patent / Patented Medicines (notice of Compliance) Regulations / Pre‑trial Motions for Letters Rogatory and Third‑party Discovery (case Management)
Outcome
Apotex's request for letters rogatory to England for out‑of‑court examination of Dr. Adlington denied; Lundbeck granted leave to compel discovery of a representative of Matrix in India and to seek documentary production; Apotex ordered to disclose identity of Matrix representative; procedural directions given...
Legal Topics
Letters Rogatory, Examination for Discovery, Third‑party Discovery, Expert Evidence, Document Production, Confidentiality Orders
Source Language
English
Patent Law Civil Procedure International Judicial Assistance Discovery Evidence Law Confidentiality Letters Rogatory Examination for Discovery +4 more

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Parties

Apotex Inc.

Plaintiff/defendant by Counterclaim

H. Lundbeck A/S and Lundbeck Canada Inc.

Defendants/plaintiffs by Counterclaim

Procedural Posture

Civil — Patent / Patented Medicines (notice of Compliance) Regulations / Pre‑trial Motions for Letters Rogatory and Third‑party Discovery (case Management)

Legal Issues

  1. 1 Whether letters rogatory should issue to compel out‑of‑court testimony of a foreign expert (Dr. Adlington)
  2. 2 Whether the moving party has shown a good reason why the witness will not attend trial
  3. 3 Whether leave should be granted to compel discovery of a third party (Matrix) in a foreign jurisdiction

Ratio Decidendi

Apotex failed to demonstrate a good reason why Dr. Adlington could not or would not attend trial in Canada given Matrix's written limited waiver and the English Orders' terms; therefore letters rogatory to compel his out‑of‑court testimony were inappropriate and, if called, his evidence should be given in the presence of the trial judge. By contrast, Lundbeck satisfied the statutory criteria for leave to examine a third party: Matrix possessed relevant information, had not cooperated fully through Apotex, contemporaneous records were reportedly destroyed, and it would be unfair not to allow pre‑trial discovery of the Matrix representative; accordingly Lundbeck was granted leave to seek...

Court Disposition

Apotex's request for letters rogatory to England for out‑of‑court examination of Dr. Adlington denied; Lundbeck granted leave to compel discovery of a representative of Matrix in India and to seek documentary production; Apotex ordered to disclose identity of Matrix representative; procedural directions given...

Orders

  • Apotex's motion for letters rogatory to compel out‑of‑court examination of Dr. Robert Michael Adlington in England dismissed.
  • Lundbeck granted leave to seek letters of request/rogatory to Indian judicial authorities to examine a representative or representatives of Matrix Laboratories Ltd. on discovery and to request documentary production as specified in the draft letters of request.