Transnational Electronic Data Exchanges (Take II)

On September 21, I posted a request for caselaw and articles discussing transnational electronic data exchanges for discovery/disclosure or in the business management context. Not surprisingly, up to now, it has received no answer.

In fact, to most people and country, this remains a useless topic of no interest. However, being the e-information geek that I am, how can I not wander, in a world of virtual data/documents, how to get e-information from a party or third person residing in a foreign country?

Nowaday, it is so easy for a multinational corporation or anyone, for that matter, to keep its records abroad. What legal means are left for the litigants?

What about corporations’ management point of view: can a corporation freely send its employees/clients information abroad?

The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters dates back to March 18, 1970. Its purpose was to reconcile different, ie conflicting, discovery procedures in different countries. The utilisation of a form “letter of request” sent directly by a court in a country to a foreign central authority, eliminating the diplomatic channel, was supposed to render discovery easier. The second means of pretrial discovery was the procedures set forth under Chapter II for the taking of evidence by diplomatic officers, consular agents, and commissioners. This method is essentially a voluntary discovery if the foreign state has given its permission.

Some of you will say that I am too much in the e-mail (quick and easy) generation but I cannot see myself going through the letter of request process, especially with the 180 days peremptory time delay the Legislator graciously offered to the Quebec litigators… Even if I would, I cannot help but think there must be an easier way to do this!

Cross-referrenced on WIM.

Comments

  1. I think that there is a distinction between true third party discovery – where the documents are literally in the hands of strangers, and those within a conglomerate.

    That distinction is recognized in Ontario in Rule 30.02(4): (4) The court may order a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.
    To quote Watson & McGowan on the scope of discovery. Disclosure must be made of every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party, whether or not privilege is claimed in respect of the document: rule 30.02. Documents are very broadly defined (rule 30.01(1)) so as to include, inter alia, photographs, videotape and computer-stored data and information. Insurance policies under which an insurer may be liable to pay a judgment in the action or to indemnify a party to the action are discoverable: rule 30.02(3). By a court order a party can be required to disclose all relevant documents in the possession, control or power of a party’s subsidiary or affiliated corporation or of a corporation controlled, directly or indirectly, by the party: rule 30.02(4).

    This was done against General MotorsPeters v. General Motors of Canada Ltd. (1986), 14 C.P.C. (2d) 147, Ontario District Court, Judicial District of York and in New Brunswick against BayerForest Protection v. Bayer AG (1996) 7 CPC (4th) 280 (NBQB). It does not seem easy under the Federal Court Rules Unilever v. Proctor & Gamble (1990) 32 CPR (3d) 246 (FCTD)

    Peters v. General Motors of Canada Ltd. (1986), 14 C.P.C. (2d) 147, Ontario District Court, Judicial District of York

    Mossop D.C.J.:
    1 This is a motion to compel General Motors Corporation to produce documents in its possession, control or power.
    2 The motion is brought under r. 30.02(4) which reads as follows:
    Subsidiary and Affiliated Corporations and Corporations Controlled by Party
    (4) The court may order a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.
    3 Under Rule 30.01(2)(b):
    (b) a corporation is affiliated with another corporation where,
    (i) one corporation is the subsidiary of the other,
    (ii) both corporations are subsidiaries of the same corporation, or
    (iii) both corporations are controlled directly or indirectly by the same person or persons.
    4 In the transcript of the examination for discovery of a representative of the defendant it is acknowledged that General Motors of Canada is a corporation intimately related (sic) to General Motors Corporation, an American corporation. From this I can infer that General Motors of Canada is a subsidiary of General Motors Company and is therefore an affiliated company.
    5 It may be of some importance to point out that by an order made May 14, 1986 the defendant was ordered to make inquiries of General Motors Corporation with respect to certain answers referred to by the representative of the defendant on his examination for discovery. That order was sustained on appeal. The defendant was also ordered to inform the plaintiff of the answers given by General Motors Corporation. The plaintiff is still waiting for such answers. Hence the plaintiff seeks an order compelling production of certain documents sought on discovery.
    6 The defendant takes the position that the documents sought are not in the possession, control or power of the defendant and therefore the motion should be brought under r. 30.10(1) particularly since r. 30.02(4) is permissive. For this proposition the defendant relies upon Indalex Ltd. v. R., 40 C.P.C. 28, [1984] C.T.C. 51, 84 D.T.C. 6018 (Fed. T.D.), where Walsh J. of the Federal Court of Canada held that the relationship between associated companies and the nature of the information sought must be examined to determine whether the information or documents sought were within the “power” of the party being examined, in our case General Motors of Canada.
    7 It must be noted that the Indalex decision was in a Court in which the Ontario Rules of Practice did not apply and does not of course deal at all with r. 30.02(4). I think much significance must attach to the fact that r. 30.02(4) is found in the new Rules whereas the former Rules were silent on the issue of production by an affiliated company.
    8 I therefore cannot subscribe to the proposition that the motion to compel production from an affiliated company should proceed under r. 30.10. It appears that r. 30.02(4) was designed to meet the very situation presented in this action.
    9 Order to go that the defendant disclose all relevant documents in the possession, control or power of its affiliated corporation, General Motors Corporation, and produce for inspection all such documents that are not privileged.
    10 Costs to the plaintiff in the cause.

  2. Thanks!

    How would you compel a foreign affiliated company to produce documents? Who would be sanctionned and how?

    What about “real” third party?

    In Quebec, the Code of civil procedure (s.402) states that:

    If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so.

    One might wonder what preservation obligation exists prior to the filing of the defence… and how a Quebec court would compel a foreign third party?

  3. Anybody knows if there are agreements between provinces regarding the exchange of documents?