Court cited solicitor-client privilege as one reason for refusal
The Ontario Superior Court has refused to enforce a letter rogatory request issued by New York Supreme Court, citing public policy considerations and solicitor-client privilege among other reasons.
In Hospira Healthcare v. Rotsztain, 2023 ONSC 4283, Hospira sought to enforce letters rogatory issued by the Supreme Court of the State of New York. The letter rogatory requests the assistance of the Ontario Superior Court of Justice to obtain documentary and oral evidence from Jack Rotsztain, a lawyer in Toronto and a corporation known as 182 Ontario.
The application arose from litigation commenced by Apotex Corp., a Delaware corporation, against Hospira Healthcare, an Indian corporation, and Hospira Inc., a Delaware corporation. The dispute involves a development, manufacturing, supply, and commercialization agreement. Under the agreement, the parties to the US action agreed to develop and commercialize certain generic injectable antibiotics in the US.
In 2018, Apotex sued Hospira in the US court, alleging breach of contract and various tort and quasi-contract claims. Apotex alleged that it entered into a supply agreement with Qilu Pharmaceuticals Co. Ltd to mitigate the damages flowing from Hospira's conduct.
Hospira alleged that Apotex knowingly breached the exclusivity and non-compete provisions of the agreement by secretly contracting with a different supplier, Qilu, and effects its scheme to switch suppliers by setting up a shell company, 182 Ontario, to enter into the supply agreement with Qilu on Apotex's behalf. Jack Rotsztain, a Canadian lawyer, allegedly acted for Apotex Inc. and 182 Ontario.
The letter rogatory requests the Ontario court's assistance in obtaining documentary and oral evidence from Rotsztain and 182 Ontario for use in the US Action.
The court noted that three elements animate the enforcement of a letter rogatory – comity, the public policy of the jurisdiction to which the request is directed, and the absence of prejudice to the sovereignty or the citizens of that jurisdiction. The jurisprudence establishes that the decision to grant or refuse enforcement is discretionary, and a court may refuse to enforce letters rogatory even if the statutory conditions have been met.
Fishing expedition
The court pointed to several criteria for enforcing the letter rogatory. These criteria include the relevance of the evidence sought, its necessity and admissibility at trial, and public policy considerations.
The court found the scope of documents sought is so broad, and the topics to be covered at the deposition are so wide and open-ended that they go beyond the pleadings and amount to a fishing expedition. The court noted that Rotsztain and 182 Ontario are non-parties to the US action. In Ontario, producing documents from non-parties requires leave of court, and the parties must show that the document sought is relevant to a material issue.
The court stressed that the broader scope of discovery in the US is not a bar per se to enforcement, but the court in Ontario must be satisfied that the requirements of Ontario law are met. The applicants have not established that the documents sought or the topics to be covered at the deposition are relevant.
Public policy considerations
In the court's view, the deposition of Rotsztain would violate public policy and Canadian sovereignty. Rotsztain and 182 Ontario argued that the scope of the documents and information sought by the letters rogatory would result in Rotsztain disclosing solicitor-client documents and information.
The court found that the request to produce documents was vague and general. Furthermore, the discovery was sought against a non-party to the litigation in violation of local laws of procedure. The court also noted that the main purpose of the examination was to serve as a "fishing expedition," a procedure not allowed in Canadian courts. The court said these circumstances are present in cases where Canadian sovereignty has conflicted with comity and where Canadian courts refused to order testimony for use in foreign proceedings.
In addition, the court explained that solicitor-client "is a principle of fundamental justice and a civil right of supreme importance in Canadian law" and "must remain as close to absolute as possible to retain its relevance."
The court stressed that Rotsztain is a lawyer governed by the Law Society of Ontario's Rules of Professional Conduct. He is duty-bound to protect the client's confidential and privileged information. The court underscored that the privilege belongs to the client, not the lawyer.
There is a presumption that the court will enforce the request from the foreign court unless it is contrary to Canadian public policy. In the court's view, the documents sought and areas to be canvassed at the deposition are too broad, and the solicitor-client privilege presumptively protects the documents.
The court ultimately said that granting the order would infringe on recognized Canadian legal principles of respect to the sanctity of solicitor-client confidentiality, resulting in an infringement of Canadian sovereignty. Accordingly, the court denied the application.
