Obtaining U.S. Discovery In Aid Of Canadian Litigation

Originally published in the February 2009 edition of Commercial Litigation Review.

In virtually every commercial case, we look for "hot documents" – those documents that tell the story with such impact that no witness could deny their truth. When a party fails to produce these documents, we go looking for them in the hands of non-parties. Canadian civil procedure allows for the discovery of this evidence, but typically only with leave of the court and only upon demonstrating fairness and necessity. As a result, orders for discovery of non-parties are the exception, not the norm, in Canada. Often, non-party evidence is simply out of reach of Canadian litigants. All is not lost, however: the evidence may be located in the United States.