Can I Be Compelled To Give Evidence In A US Lawsuit? A Recent Case On Letters Rogatory...

Through "letters rogatory" or "letters of request", a court asks for the help of a foreign court to obtain evidence from a foreign non-party witness for a domestic legal proceeding.

In Canada, this often arises in the context of US actions — a US court will issue a letter of request seeking, for example, an Ontario court's assistance in obtaining documentary or oral evidence from a witness located in Ontario. The Ontario court will then consider the statutory prerequisites to enforcement and discretionary principles like comity, public policy, and the potential for prejudice to Canadian sovereignty.

In this context, tension can arise when letters rogatory originate from US courts. This is because the US approach to "discovery" — the process of obtaining relevant evidence prior to trial — is much broader than it is in Canada. As a result, a US court may sometimes request evidence that goes beyond what a person or entity in Ontario would be required to produce in