Merck & Co. v. Apotex Inc., 2003 FCT 664

                                                                                                                                            Date: 20030527

                                                                                                                                       Docket: T-2792-96

Montréal, Quebec, May 27, 2003

Present:           Mr. Richard Morneau, Prothonotary

BETWEEN:

                                                               MERCK & CO., INC.

                                                   MERCK FROSST CANADA & CO.

                                                              SYNGENTA LIMITED

                                                   ASTRAZENECA UK LIMITED and

                                                    ASTRAZENECA CANADA INC.

Plaintiffs

(Defendants by counterclaim)

and

APOTEX INC.

Defendant

(Plaintiff by counterclaim)

ORDER

Concerning the undertakings not yet answered by Apotex and listed in the confidential appendices 1A and 1B of the plaintiffs' motion record, the parties agree that Apotex shall reply in writing within forty-five (45) days of this order.

Concerning appendix 1C, the list dated April 7, 2003, received by Apotex shall be replied to in writing likewise within forty-five (45) days of this order. Any other list received by Apotex under this appendix 1C shall be replied to in writing within forty-five (45) days of its receipt.

Concerning the few remaining questions under revised appendix 2, the motion of the plaintiffs is dismissed, costs in the cause.

Accordingly and in similar fashion to the situation that now applies to Apotex, the examination for discovery of Apotex by the plaintiffs is closed.

Richard Morneau

Prothonotary

Certified true translation

Suzanne Gauthier, C.Tr., LL.L.

Date: 20030527

                                            Docket: T-2792-96

Citation: 2003 FCT 664

BETWEEN:

                  MERCK & CO., INC.

      MERCK FROSST CANADA & CO.

                 SYNGENTA LIMITED

      ASTRAZENECA UK LIMITED and

        ASTRAZENECA CANADA INC.

Plaintiffs

(Defendants by counterclaim)

and

APOTEX INC.

Defendant

(Plaintiff by counterclaim)

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]         This is a motion by the plaintiffs for a decision on certain questions pursuant to the second phase of the examination for discovery of a representative of the defendant Apotex Inc.

[2]         Concerning the undertakings not yet answered by Apotex and listed in the confidential appendices 1A and 1B of the plaintiffs' motion record, the parties agree that Apotex shall reply in writing within forty-five (45) days of the order accompanying these reasons.

[3]         Concerning appendix 1C, the list dated April 7, 2003, received by Apotex shall be replied to in writing likewise within forty-five (45) days of the order accompanying these reasons. Any other list received by Apotex under this appendix 1C shall be replied to in writing within forty-five (45) days of its receipt.

[4]         Concerning the few remaining questions under revised appendix 2, the motion of the plaintiffs will be dismissed, costs in the cause, pursuant to the detailed written observations submitted by Apotex and developed at the hearing. In this sense, I am satisfied and I accept that Apotex did take a serious look at these questions and raised, where it was deserved, the balancing which was imposed upon it on the examination for discovery that it conducted with the representatives of the plaintiffs.

[5]         More specifically, concerning questions 20 and 24, although the plaintiffs may note certain inconsistencies by Apotex in regard to similar requests made by them, I think that at the end of the day Apotex may nevertheless refuse to answer questions 20 and 24 on the ground that they require that Apotex ultimately express an opinion that is within the area of the expert opinion. These questions, like the few other remaining questions, will not have to be answered, therefore. Accordingly and in similar fashion to the situation that now applies to Apotex, the examination for discovery of Apotex by the plaintiffs is closed.

Richard Morneau

Prothonotary

Montréal, Quebec

May 27, 2003

Certified true translation

Suzanne Gauthier, C.Tr., LL.L.

FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20030527

                                                         Docket: T-2792-96

BETWEEN:

MERCK & CO., INC.

MERCK FROSST CANADA & CO.

SYNGENTA LIMITED

ASTRAZENECA UK LIMITED and

ASTRAZENECA CANADA INC.

Plaintiffs

(Defendants by counterclaim)

and

APOTEX INC.

Defendant

(Plaintiff by counterclaim)

REASONS FOR ORDER

FEDERAL COURT OF CANADA

TRIAL DIVISION

SOLICITORS OF RECORD

DOCKET:                                  T-2792-96

STYLE:                                      MERCK & CO., INC.

                                                    MERCK FROSST CANADA & CO.

SYNGENTA LIMITED

ASTRAZENECA UK LIMITED and

ASTRAZENECA CANADA INC.

Plaintiffs

(Defendants by counterclaim)

and

APOTEX INC.

Defendant

(Plaintiff by counterclaim)

PLACE OF HEARING:          Montréal, Quebec

DATE OF HEARING:            May 12, 2003

REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY

DATED:                                    May 27, 2003

APPEARANCES:

SOLICITORS OF RECORD: