Archive for the ‘pre-suit discovery’ Category

Ontario court declines to enforce U.S. letters rogatory involving Canadian Crown agency

August 9, 2011

The recent decision of Madam Justice Pollack of the Ontario Superior Court of Justice in Lantheus Medical Imaging, Inc. v Atomic Energy of Canada Limited (Court File No. CV-11-427161: 27 July 2011) [pdf] involved a successful opposition to an application for enforcement in Canada of a foreign letter of request (letters rogatory) against a Canadian Crown corporation. Lantheus Medical Imaging, Inc. (“Lantheus”) applied for an order giving effect to Letters Rogatory issued by the United States District Court for the Southern District of New York City (“U.S. Court”) compelling the production of certain documents and the attendance at an examination under oath of Atomic Energy of Canada Limited (“AECL”) for use in an insurance coverage action pending before the U.S. court. The court notes,

Pollack J. dismissed the application on the basis that the respondent, AECL, as a Crown agency, may be entitled to state immunity under the U.S. Federal Sovereign Immunity Act (“FSIA”) before the foreign court, but that Lantheus did not expressly disclose the issue to the U.S. court and the U.S. court had failed to consider it. Pollack J. observes,

The application was dismissed without prejudice for Lantheus to reapply following the U.S. court’s determination on the FSIA issue.

For more information on letters of request (letters rogatory) see my previous post: Ontario court declines to enforce New Jersey court’s letters rogatory. For an overview of state immunity, see my previous post:  UPDATED: Only Time Will Tell: Canadian and American approaches to State Immunity.

(Don Jack, Bonnie Roberts Jones and Kara Smith of Heenan Blaikie LLP/SRL appeared for AECL; Brett Harrison and Richard McCluskey appeared for Lantheus; R. Richler appeared for Zurich American Insurance and Dale Yurka appeared for the Department of Justice )

UPDATED: CTB v. Twitter, Inc. and Unknown Persons: Trying to Flog a Dead Horse

May 22, 2011

Briefly, the underlying case is CTB v. News Group Newspapers Ltd. et al. which is an English High Court Queen’s Bench Division judgment arising from litigation between an “anonymous” English premier league footballer, “CTB” and defendants News Group Newspapers Limited and Imogen Thomas. On 14 April 2011, Mr Justice Eady granted first a temporary injunction prohibiting the naming of the footballer in the media, which injunction was extended on April 21st, 2011. The injunction initially sought to prevent details of an extra-marital relationship between the married footballer CTB and Ms Thomas – from being published in the London newspaper, The Sun and was based on Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to privacy. CTB v News Group Newspapers Ltd et al. [2011] EWHC 1232 (QB) (16 May 2011) is analysed in depth by Edward Craven at Inforrm’s Blog: Case Law: CTB v News Group Newspapers: privacy law and the judiciary.

See also,

Since then, Twitter is abuzz about the news that CTB has commenced another action in the English court, this time against Twitter, Inc.  to disclose the identities of some of its anonymous account holders alleged to have breached Justice Eady’s injunctive order by disclosing the claimant’s identity:. The case is styled: CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814. Read Charles Russell’s CRITique blog for a great summary here.

Unlike some others, I respect the Rule of Law and choose not to identify “CTB” in breach of Justice Eady’s injunctive order, irrespective of whether, in my opinion, any such order is unenforceable contra mundum. (more…)

Ontario court declines to enforce New Jersey court’s letters rogatory

May 5, 2011
The Great Seal of the State of New Jersey.

Image via Wikipedia

The recent Ontario court decision in Third Point LLC v. Fenwick, 2011 ONSC 2068 (CanLII) provides a useful summary of the law on letters rogatory (letters of request).

Grace, J. of the Ontario Superior Court of Justice heard an application brought by some defendants in a New Jersey action,  requesting the court to  to enforce letters of request issued by a New Jersey court.

The U.S. plaintiffs filed a complaint alleging that over several years, numerous defendants, including the applicants, disseminated false information in order to profit from the decline in the price of shares in the U.S. plaintiff’s company.


Scott Dodson #SSRN on "New Pleadings, New Discovery"

January 19, 2010

Scott Dodson (William & Mary School of Law) has posted a new working paper on SSRN entitled : New Pleadings, New Discovery , William & Mary Law School Research Paper No. 09-20. Here is the abstract:

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is in the hands of defendants. New Pleading thus screens out these claims even though they may have merit. This article offers a solution to New Pleading’s problems of information asymmetry: New Discovery. New Discovery recognizes the need for limited presuit or pre-dismissal discovery to provide plaintiffs the opportunity to gather the facts necessary to comply with New Pleading’s strictures. The article presents a normative defense of New Discovery, offers some guiding principles and tools for controlling its scope and cost, and explores how New Discovery might work both under the current discovery scheme and in the context of needed discovery reforms.

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