Date: 19981216
Docket: T-577-87
BETWEEN:
IMPERIAL OIL LIMITED
and its subdivision PARAMINS
Plaintiff
- and
THE LUBRIZOL CORPORATION
and LUBRIZOL CANADA, LIMITED
Defendants
- and -
DR. FRED W. BILLMEYER JR.
Intervenor
REASONS FOR ORDER
NADON J.:
[1] By their motion, the defendants seek an order requiring the plaintiff to produce certain documents which appear in the privilege log of Exxon Corporation ("Exxon") in an action pending in the United States District Court for the Northern District of Ohio, Eastern Division, between the Lubrizol Corporation, one of the defendants herein, and Exxon (civil action 1:90CD1705). These proceedings are referred to by the parties to this action as the Ohio III proceedings.
[2] The documents which the defendants seek production of are mostly communications to and from Exxon attorneys in the United States relating to an earlier action, referred to as the Ohio I proceedings. The plaintiff Imperial Oil Limited was not and is not a party to the Ohio proceedings.
[3] The plaintiff opposes the defendants" motion on two grounds. Firstly, the plaintiff says that the documents sought are not relevant to the issues raised in these proceedings. Secondly, the plaintiff says that the documents sought are documents in respect of which Exxon has asserted a privilege in the Ohio III proceedings. As a result, the plaintiff says that the production of those documents cannot be compelled.
[4] In my view, the position taken by the plaintiff is correct. Exxon is not a party to the proceedings before this Court. It is, however, a party in the Ohio III proceedings. The defendants rely, inter alia, on Rule 225 of the Federal Court Rules. That rule deals with the Court"s powers to order disclosure of documents in an affidavit of documents. On the other hand, Rule 229 deals with the Court"s powers to order the production of documents. Rule 229 reads as follows:
| 229. On motion, the Court may order the production for inspection and copying by a party of any document referred to in subsection 228(1), at a time and place and in a manner set out in the order.
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229. La Cour peut, sur requête, ordonner la production de tout document visé au paragraphe 228(1) afin qu'une partie puisse l'examiner et le reproduire aux date, heure et lieu et selon les modalités qu'elle prescrit.
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[5] Rule 228(1) to which reference is made in Rule 229, provides as follows:
| 228. (1) Subject to rule 230, a party who has served an affidavit of documents on another party shall, during business hours, allow the other party to inspect and, where practicable, to copy any document referred to in the affidavit that is not privileged, if the document is
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228. (1) Sous réserve de la règle 230, la partie qui a signifié à une autre partie son affidavit de documents lui permet d'examiner et, si possible, de reproduire, pendant les heures de bureau, tout document mentionné dans cet affidavit, si aucun privilège de non-divulgation n'est revendiqué à l'égard du document et si celui-ci est:
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| (a) in the possession of the party; or
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a) soit en sa possession;
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| (b) in the power or control of the party and the other party requests that it be made available because the other party cannot otherwise inspect or copy it.
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b) soit sous son autorité ou sous sa garde, et que l'autre partie demande d'y avoir accès parce qu'elle ne pourrait autrement l'examiner ou le reproduire.
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[6] A review of Rules 228(1) and 229 makes it clear that privileged documents are not subject to inspection and production. The documents sought are documents over which Exxon is asserting a privilege in the Ohio III proceedings. There is no evidence before me that the defendant The Lubrizol Corporation, a party in the present proceedings and in the Ohio III proceedings, has challenged the assertion of privilege made by Exxon in the Ohio III proceedings. I agree with counsel for the plaintiff that the defendants, in seeking production of certain documents listed in the Exxon privilege log, have not put forward any argument, nor is there any evidence, to show that the documents are not privileged.
[7] The thrust of the defendants" argument is that the documents sought are highly relevant to some of the issues raised in these proceedings. Even if I were to accept the defendants" argument on relevancy, that does not render the documents compellable. The documents sought, on the evidence before me, are documents over which Exxon asserts a privilege in the Ohio III proceedings and it appears that, by reason of that privilege, the plaintiff has not had access to the documents. I wonder how, in these circumstances, I can order the plaintiff to produce the documents sought by the defendants. In my view, the order which the defendants seek cannot be made.
[8] Consequently, I need not decide whether the documents sought are relevant. In my view, the defendants are not entitled to the order which they seek.
[9] Costs shall be in the cause.
Ottawa, Ontario "MARC NADON"
December 16, 1998 JUDGE
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