Cross-Border Class Actions: Pre-Certification Discovery of Documents Subject to Protective Orders in the United States

Class actions alleging anti-competitive conduct in Canada are frequently filed in the wake of similar proceedings in the United States, and plaintiff counsel firms in both countries openly cooperate in the advancement of these cases. An important issue in such cross-border litigation is whether a Canadian plaintiff can seek production from the defendants, prior to certification in Canada, of documents exchanged in the context of the certification motion in the US litigation.

Class actions are bifurcated proceedings: the plaintiff who wants to represent the class must first obtain leave from the court to launch the action as a class action, a process called certification. In Canada, class action legislation does not contemplate a right to discovery prior to certification and, where available with leave of the court, such discovery rights are limited. Conversely, US plaintiffs are granted full discovery at the certification stage, but the information provided on