Docket: T-705-13
Citation:
2015 FC 391
Toronto, Ontario, March 27, 2015
PRESENT: Prothonotary Kevin R. Aalto
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BETWEEN:
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MEDIATUBE CORP. AND NORTHVU INC
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Plaintiffs
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and
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BELL CANADA AND BELL ALIANT REGIONAL COMMUNICATIONS,
LIMITED PARTNERSHIP
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Defendants
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ORDER AND REASONS
[1]
In this unusual motion and in what can only be
described as a vigorously litigated matter, Bell seeks an order to the effect
that the representatives of MediaTube and NorthVu attend in person to answer “under advisement” questions posed to date on the
examinations for discovery. The examination for discovery of MediaTube and
NorthVu so far has extended to some 9,000 - 10,000 questions and it is claimed
that there are approximately 1,000 questions either refused or “under advisement”. Bell argues that by taking a
large swath of questions “under advisement” MediaTube
is trying to orchestrate or script answers by having counsel prepare written
answers to those questions. Bell argues that this is entirely improper and
that they are entitled on the discovery to a direct answer from the witness without
interference by counsel.
[2]
Bell argues the tactic
of counsel for MediaTube and NorthVu by preventing the witnesses from answering
by taking a question “under advisement” is a
misuse of the examination for discovery process.
[3]
For their part, MediaTube and NorthVu deny any
such intention or conduct. They argue that of the questions which were not
answered, a substantial portion of them require investigation and inquiry from
other sources to obtain information, and it is entirely appropriate to make
those inquiries on behalf of the witness and provide written answers. With
respect to the “under advisement” questions,
MediaTube and NorthVu argue that these also fall into that category of
assembling of information to ensure the answers are accurate and need not be
further clarified or updated after the fact as is required by the Rules. They
argue that they are entitled to speak to their client’s representatives with respect
to obtaining and finalizing answers to all of these questions.
[4]
In an effort to resolve the motion, Bell delivered a proposed settlement on the following terms:
We are prepared to settle our motion on the
following terms:
1. The parties shall consent to an
Order which provides:
a. If
prior to the refusals motion, the plaintiffs intend to answer any questions (i)
refused or (ii) taken under advisement at the plaintiffs’ examinations for
discovery, that such questions shall not be answered in writing, but instead
Ross Jeffrey and/or Doug Lloyd shall re-attend at the plaintiffs’ expense to
continue the examination(s) for discovery.
b. Until
such time as Ross Jeffrey or Doug Lloyd re-attends for his continued
examination for discovery, or the court determines that a question need not be
answered, counsel for the plaintiffs shall not discuss with Mr. Jeffrey or Mr.
Lloyd (i) any of the unanswered questions asked at the examinations for
discovery or (ii) any proposed or potential responses.
c. For
greater certainty, nothing in the order shall preclude plaintiffs’ counsel from
speaking to Mr. Jeffrey or Mr. Lloyd about the subject matter of the litigation
generally or to prepare for the examination for discovery of Bell Canada’s witness scheduled to commence December 8, 2014.
2. The
plaintiffs will pay the defendants’ costs of preparing the motion on an
expedited basis, forthwith, fixed in the amount of $10,000.00.
[5]
The terms of the proposal were unacceptable to
MediaTube and NorthVu and the motion proceeded. At the outset of the motion,
counsel for Bell reviewed various categories of questions from a chart found in
MediaTube’s responding motion record. The exact number of questions of concern
to Bell is substantially less than 1,000 and apparently falls into three
categories: infringement, validity, and disclosure.
[6]
As this is a patent infringement action, there
are technical aspects to the questions being asked of the MediaTube and NorthVu
witnesses. One such example is as follows:
974 Q. How many channels were
you looking for?
A. We could have carried hundreds of
channels.
975 Q. Let’s
just say 100 for the sake of argument. Was it configured to receive
all 100 channels into the MPEG video
encoder?
A. Encoders.
976 Q. Encoders. All the
channels go into the encoders?
A. Yes. There was
other equipment there. I don’t know it all. Like I said, I am not an
engineer.
977
Q. All I can ask you about is what you
know. Was it configured so that all of
the channels go into the core router?
A. Again, I couldn’t answer that question. That would be
more of an engineer question.
[7]
As is obvious from this question, the witness
simply cannot provide an answer to the question. There is no attempt to avoid
providing the information save and except that counsel’s objection was not an
undertaking but “under advisement”. As on its
face the question appears to be relevant what counsel probably intended was to
provide an answer by way of undertaking after further inquiries and
investigation as it was a technical question.
[8]
The use of the phrase “under
advisement” on examinations for discovery to prevent a witness from
answering a question has become rampant. There is no provision in the Rules
for such a position to be taken in respect of a proper question posed on an
examination for discovery. Rules 234-248 establish the procedure for
examinations for discovery in Federal Court proceedings. Nowhere in those
Rules is the phrase “under advisement” used.
Rule 242 governs objections on an examination for discovery. There are four
categories of objections as follows:
(a)
the answer is privileged;
(b)
the question is not relevant;
(c)
the question is unreasonable of unnecessary; and
(d)
it would be unduly onerous to require the person
to make the inquiries to answer the question.
[9]
“Under advisement” is not an objection. It may be a useful intervention where the
issue of relevance may be a matter for further consideration or discussion with
opposing counsel. But it is not a substitute for a properly made objection on
the enumerated grounds. It has become misused by counsel and is a glib
mechanism to avoid having a witness answer a question which may otherwise be
relevant. Counsel should refrain from using this as a backdoor means of
objecting. Either object on proper grounds or let the witness answer or, if
the question requires information which the witness does not know, give an
undertaking.
[10]
What does “under
advisement” mean anyway? Is it an objection? – No; is it an agreement
to answer the question immediately after some consideration? – No; or, is it an
indication that some answer will be forthcoming now or in the future? – No. It
is nothing other than an interruption of the examination. If there were some
explanation as to why it was taken “under advisement”
perhaps it might mean something. For example, is it to consider whether the
question is clear; to consider whether the question relates to an issue in the
case; or, perhaps, to determine whether a document might contain information to
assist the witness in answering or whether further investigations must be
conducted with the client to obtain the information. The various definitions
of “under advisement” include “careful deliberation or consideration” [see, Random
House Kernerman Webster's College Dictionary, 2010 K Dictionaries Ltd.
Copyright 2005, 1997, 1991 by Random House, Inc.]. However, there is nothing
in this transcript in the Court’s review of it that is in any way informative
of why the questions need “careful deliberation or
consideration”.
[11]
It is helpful to consider another important rule:
Rule 241. This Rule concerns the obligation of a witness to inform him or
herself of relevant information for purposes of being examined for discovery.
That Rule provides as follows:
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Obligation to inform self
241. Subject to
paragraph 242(1)(d), a person who is to be examined for discovery, other than
a person examined under rule 238, shall, before the examination, become
informed by making inquiries of any present or former officer, servant, agent
or employee of the party, including any who are outside Canada, who might be
expected to have knowledge relating to any matter in question in the action.
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L’obligation de se renseigner
241. Sous réserve
de l’alinéa 242(1)d), la personne soumise à un interrogatoire préalable,
autre que celle interrogée aux termes de la règle 238, se renseigne, avant
celui-ci, auprès des dirigeants, fonctionnaires, agents ou employés actuels
ou anté- rieurs de la partie, y compris ceux qui se trouvent à l’extérieur du
Canada, dont il est raisonnable de croire qu’ils pourraient dé- tenir des
renseignements au sujet de toute question en litige dans l’action.
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[12]
While Rule 241 is a positive obligation on a
witness on an examination for discovery, given the complexities of patent
litigation and this case in particular, it would be impossible for any one
witness to inform him or herself of all possible information that might be
required to be able to answer the questions on discovery. Until a question is
asked a witness will only know in a general sense what the issues in the case are.
The questions will crystallize the information sought by opposing counsel. No
one has a crystal ball to know with certainty what will be asked. That is why
undertakings to provide answers are one of the basic fundamentals of
examinations for discovery.
[13]
Examination for discovery is also not a memory
contest. A witness should be shown courtesy and provided the opportunity to
consult documents where necessary to answer questions. Counsel must be able to
assist in helping a witness find a relevant document or relevant information.
[14]
Undertakings by counsel to inquire and provide
information is the usual process by which information not reasonably or readily
within the knowledge of the witness can be provided. Further, Rule 245(1)
requires a witness to correct an answer given on a discovery subsequent to the
discovery or to complete an answer that is deemed to be incomplete. That Rule
also provides that the witness may be subject to further examination in respect
of such additional information.
[15]
This is not a motion to determine the relevance
of any of the questions refused or taken “under
advisement” by counsel for MediaTube or NorthVu. Those motions are
pending before the Case Management Judge although it is to be observed in
passing that a motion to compel answers to 1,000 questions is out of all
proportion. Such a motion potentially will take longer than the discovery
itself which is an absurd result. That is an abuse of the Court.
[16]
Refusals motions have become the scourge of
litigation in this Court, particularly, IP litigation. Refusals motions
dealing with hundreds of question have become the norm not the exception.
Refusals motions that last days on end because counsel move on every single
refused question including the most trivial without considering whether the
questions are truly essential or not consume a disproportionate amount of time
of the Court in dealing with them to the detriment of other litigants. By and
large many of those hundreds of questions are at best marginal and very few
ever see the light of day in providing useful information for trial. It has
simply become part of the litigation strategy. Refusals motions, except where
there are exceptional circumstances, should deal with perhaps no more than 50
or so questions.
[17]
Counsel for Bell can certainly point to examples
where it would appear that the discovery process was being thwarted. For
example, on page 67 of the transcript the MediaTube witness the following
exchange took place:
MR. REDDON: Does the Plaintiff have any knowledge,
information or belief of one speck of confidential information that was
solicited or given in those meetings that can be identified here and now,
today?
U/A MR. SPICER: We will take it under
advisement.
MR. REDDON: Or at all?
U/A MR. SPICER: Same position.
[18]
While that is one example of a failure to permit
the witness to answer, there is another example given by counsel for Bell which is perfectly legitimate in the circumstances. That example is as follows:
MS. LEGERE:
Q: Can
you look at the Response to the Demand for Particulars at page 5, sub (b). Sub
(b) discusses the agreement dated December 12, 2005, which we were just looking
at. When MediaTube asserts that the parties to the agreement agreed not to
compete for the development of presentation of a similar product, you would
agree with me that Bell Canada did not agree to not compete for the development
or presentation of a similar product?
REF MR. SPICER: We are not going to admit that, Ms. Legere.
MS. LEGERE: Will you let the witness answer the question?
MR. SPICER: No. You are asking for admissions. That is
a request for an admission.
[19]
It must be remembered that examinations for
discovery are not cross-examinations although some cross-examination is
allowed. The general rule in cross-examination is that the party being
cross-examined cannot communicate with counsel for assistance in respect of the
examination. But, witnesses in cross-examination are not there to give
undertakings or make further inquiries; they are there to answer questions
within their personal knowledge. Discovery is in large part a fact finding
exercise. One of its main objectives is to allow the opposing party to explore
and understand the case it has to meet. While that is the primary purpose of
an examination for discovery other purposes include obtaining admissions which
will dispense with the requirement for formal proof at trial and to obtain
admissions which will defeat the other side’s case.
[20]
The Court does not support the over abundance of
interruptions in an examination by the use of a quasi objection such as “under advisement”. Witnesses should be permitted to
answer proper questions. If the witness does not know the answer then that is
the answer and that is when undertakings are appropriate to make further inquiries
and provide answers on a follow-up examination or by way of writing if the
circumstances are such that answers in writing are acceptable to the party
examining. Parties to litigation are expected to generally follow the Rules
keeping in mind that flexibility, civility and proportionality must be
exercised in all cases.
[21]
A number of Courts have commented on the conduct
of discoveries. In this Court, the Honourable Mr. Justice Fred Gibson in Andersen
Consulting v. Canada (T.D.), [1997]
2 F.C. 893, made the following observation at paragraph 15:
15. Once again, I am satisfied that
the same can be said of examinations for discovery before this Court.
Cross-examination on examination for discovery is clearly, if obliquely,
contemplated by the Federal Court Rules which provide that objection may not be taken to a question put to
the party being examined, merely on the ground that the question is in the
nature of cross-examination. But that is not to say that examination for
discovery that is in the nature of cross-examination is governed by all of the
principles applicable in respect of cross-examination at trial. In particular,
the generally accepted principle that counsel may not consult with a person
being cross-examined during the course of the cross-examination cannot, I
conclude, be extended without reservation to examinations for discovery. To
preclude access by counsel to an individual being examined, and the converse,
particularly where that individual is a nominee rather than a party and the range
of the examination for discovery is broad and detailed, would work against the
principles governing examination for discovery quoted earlier from the Crestbrook Forest Industries Ltd.
decision.
[22]
To be noted is Justice Gibson’s observation that
witnesses should have access to counsel during the examination. Given the
nature of the issues and complexity of the matters in dispute in this case, a
single witness would be hard put to have every single piece of information
readily available to answer questions. As noted, discovery is not a memory
contest. Just as Justice Gibson ordered in the Andersen Consulting
case, the witness here should have access to counsel and consult with counsel
during recesses and adjournments for advice and assistance in assembling
evidence for examination and correcting inaccuracies or deficiencies in any
answers given during the examination. “Under
advisement” should not be used as a weapon to interfere in the flow and
conduct of an examination.
[23]
A useful summary of the principles relating to
examinations for discovery can also be found in Iroquois Falls Power Corp.
v. Jacobs Canada Inc., 2006 CarswellOnt 6532, a decision of Master Calum
MacLeod of the Ontario Superior Court of Justice wherein the following Guiding
Principles were set out in paragraph 43 of the decision as follows:
Guiding Principles
[43] The following
principles emerge from the case law and the above analysis:
(1) Counsel
representing a party who is being examined is entitled to interrupt the
examining party for the purpose of objecting to an improper question, placing
the objection on the record and either directing the witness to answer under
protest or not to answer. See rule 34.12 and
Kay v. Posluns at p. 246.
(2) Counsel
may also interrupt the examiner if necessary to ensure the witness and counsel
both understand the question. See Kay v. Posluns at p. 246.
(3) As a
practical matter counsel may sometimes wish to answer a question or to correct
an answer but if the examining counsel objects then neither of these are
permitted. See rules 31.08, 31.09. See Kay v. Posluns
at pp. 246-47.
(4) Counsel
may choose to re-examine his own client in order to correct an answer or to
clarify or explain an apparent admission or inconsistency. Alternatively he or
she may provide the correction or clarification subsequently in writing. In
either case, the examining party is entitled to the evidence of the witness and
not that of counsel. It is the duty of the witness and not counsel to correct
the evidence. See rules 31.09 and 34.11;
Kay v. Posluns at p. 247.
(5) Counsel
must respect the fact that discovery evidence will include an element of
cross-examination and should not discuss evidence with the witness during a
break. See rule 4.04, Rules of
Professional Conduct; Chapter IX, CBA Code.
(6) In a
lengthy discovery or series of discoveries, counsel may consider it necessary
to discuss evidence with the witness. Generally the intention to do so should
be disclosed to opposing counsel and if there is an objection it may be
necessary to seek leave of the court. See Commentary, rule 4.04, Rules of
Professional Conduct.
(7) If
there is a break between rounds of discovery, counsel is free to meet with the
client to prepare for the upcoming discovery. It may also be necessary to
discuss evidence already given to obtain instructions in regard to discovery
motions, to advise the client of the duty to correct answers and to answer
undertakings. It is prudent to disclose this intention to opposing counsel.
[page 459]
(8) Counsel
ought not unnecessarily oppose reasonable discussions between counsel and
client provided they are disclosed. It is legitimate on the resumption of
discovery to ask the witness under oath if he or she was coached in any way as
to what answers to give.
(9) Accusations
of professional misconduct ought to be reserved for the clearest of cases based
on cogent and persuasive evidence and when such a finding is a necessary and
inescapable conclusion.
(10) Motions
for direction should only be necessary when counsel for the party being
examined has refused all requests to conduct him or herself in accordance with
the rules and interference has become so extreme as to render the discovery
futile.
(11) Generally
speaking, the court will eschew findings that a counsel has breached the Rules
of Professional Conduct as such but will take notice of those Rules in
determining what standard is expected of counsel before the courts. The court
may have to make findings of fact that could constitute evidence of
professional misconduct. In such cases counsel should be afforded reasonable
procedural protections.
[24]
Master MacLeod then concluded his decision on
what could only be described as a halting examination for discovery give the
number of interjections by counsel on behalf of the witness as follows:
[44] In conclusion,
the court will not give formal direction pursuant to rule 34.14 in the
circumstances of this case. It is a breach of the Rules of Civil
Procedure to continue to interject to answer questions for the witness or
to correct answers if the examining counsel requests counsel not to do so. It
was an error in judgment to discuss evidence with the party being examined
during a break without first disclosing this intention to the examining
counsel. The proper application of rule 4.04 of the Rules of Professional
Conduct to examination for discovery will depend upon various circumstances
including the length of the discovery, the time between discovery sessions and
the necessity of counsel advising the client or obtaining instructions. In
general, however, the discovery should be treated in the same way as
cross-examination at trial. The most prudent course is to disclose the
necessity to discuss evidence to examining counsel and examining counsel ought
not to unreasonably object. In some cases, if counsel cannot agree, it may be
necessary to obtain leave of the court, but the need for court intervention or
supervision should be rare.
[page 460]
[45] It is apparent from the above that the
conduct of plaintiff counsel was in error. On the other hand, the accusation of
professional misconduct and a motion for directions was an overreaction. There
were, however, important questions of practice involved . . .
[25]
In all, Master McLeod’s observations are
applicable here and counsel should be guided by these principles to the extent
they apply. In the circumstances of this case, while there was an unusual
number of refusals in the guise of under advisements, in the scheme of things
that will usually happen to some small extent on discoveries. Bell ought to have as many answers as possible directly from the witness within the limits
outlined above. Notwithstanding the terms of this Order, it is not intended in
any way to fetter the discretion of the Case Management Judge in making any
Orders or giving any Directions for the continued conduct of the examinations
for discovery.
[26]
Bell sought fixed costs in the amount of
$10,000. In my view, while Bell has been successful on some relief it sought
in this interlocutory skirmish they are entitled to some costs but which costs
should be in line with those recoverable in the ordinary course according to
the Tariff. I assess costs fixed in the amount of $3,000.00 payable
forthwith.
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