Date:
20110126
Docket: T-575-04
Citation: 2011FC88
BETWEEN:
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APOTEX INC.
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Plaintiff/
Defendant by Counterclaim
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and
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H. LUNDBECK A/S AND
LUNDBECK CANADA INC.
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Defendants/
Plaintiffs by Counterclaim
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REASONS
FOR ORDER
TABIB
P.
[1]
The Court
is seized of two motions for the issuance of Letters of Request or Letters
Rogatory seeking the assistance of foreign Courts in securing the testimony of
persons residing in their jurisdiction.
[2]
The
Plaintiff, Apotex Inc. (“Apotex”) seeks to examine Dr. Robert Michael Adlington
out of Court, in England, for trial.
[3]
The
Defendant, H. Lundbeck A/S and Lundbeck Canada Inc. (“Lundbeck”) seeks to
examine a representative or representatives of Matrix Laboratories Ltd., on
discovery, in India.
The proceedings
[4]
Apotex
commenced the within action against Lundbeck for damages caused to Apotex by
the exclusion of its citalopram drug product from the market in Canada in the
period from July 24, 2002 to January 7, 2004, pursuant to Section 8 of the Patented
Medicines (Notice of Compliance) Regulations.
[5]
Lundbeck
defended the action and counterclaimed for damages for infringement of several
patents, including Canadian Letters Patent No. 2,360,287 (the “287 Patent”) in
the period from 2001 to date. It appears that Apotex, even though it was not
authorized to sell citalopram in Canada
until January 7, 2004, was nevertheless importing citalopram and formulating
same into tablets during that period, stockpiling same in preparation of future
sales. Apotex defended the infringement counterclaim, inter alia, on the basis
that the ‘287 Patent was not infringed.
[6]
The ‘287
Patent covers part of the process for manufacturing citalopram as an active
pharmaceutical ingredient (“API”), in particular, the process involving the
formation of citalopram base in crystalline form.
[7]
The API
for Apotex’s citalopram drug product was, at the relevant time, manufactured
and supplied by Matrix Laboratories Ltd. (“Matrix”) in India.
[8]
One of the
central and highly contentious issues in this action is whether, in the period
from 2001 to 2004 inclusive, Matrix did supply to Apotex or was capable of
supplying to Apotex citalopram API manufactured through a non-infringing
process.
[9]
To date,
Matrix has only supplied batch records for some batches manufactured in 2005.
Apotex reports that Matrix has informed it that it had destroyed all batch
records for citalopram API manufactured for Apotex prior to 2005, pursuant to
its record destruction policy.
[10]
In 2002,
Dr. Adlington, a chemistry professor at Oxford University, in the context of European proceedings
instituted by Lundbeck against Lagap Pharmaceuticals, another generic
pharmaceutical company sourcing its product from Matrix, visited Matrix and
produced a number of reports based on his observations and conclusions. These
reports dealt with the nature of the Matrix process and whether it could
operate on an industrial scale and was in fact operating on such a scale.
Apotex wishes to secure Dr. Adlington’s testimony for the trial herein.
[11]
With
respect to Lundbeck’s request to have discovery of a representative of Matrix,
Apotex has announced that, despite the destruction of batch manufacturing
records created prior to 2005, it would call as a witness at trial a representative
of Matrix to testify orally to Matrix’s method of production of the citalopram
supplied to Apotex. Lundbeck has long asserted that, in those circumstances,
it should have the right to have full and complete discovery of Matrix prior to
the trial.
[12]
As some of
the facts and considerations relevant to both motions were interrelated, the
motions were heard together. At the hearing, counsel for Lundbeck sought to
introduce an unsworn statement in response from its Indian law expert; Apotex
objected. As the written statement consisted mainly of bare assertions of
disagreement with the opinions of Apotex’s expert –themselves consisting mostly
of bare assertions, and as the Court considered that the issues addressed in
the proposed reply were sufficiently addressed in the parties’ respective
records, leave to file the reply was not granted and the reply was not
considered.
Dr. Adlington
[13]
Evidence
at trial is to be given orally at the trial, but the Court has discretion to
permit evidence to be taken out of Court. Where the witness to be examined
will not voluntarily appear to give evidence and is not within the Court’s
territorial jurisdiction, the Court may also exercise its discretion to seek
the assistance of the judicial authority where the witness is located to compel
the attendance of the witness. Taking the evidence of a witness for trial in a
foreign jurisdiction pursuant to letters of request may be done out of Court,
that is, outside the presence of the trial Judge, or may be done as part of the
trial, in the presence of the trial Judge, so that it then becomes evidence
given orally at the trial. Here, Apotex requests both that Dr. Adlington’s
evidence be taken out of Court and that it be compelled through letters
rogatory addressed to the English
Court.
[14]
It is
trite law that, in both cases, (examinations out of Court for trial and
issuance of letters rogatory) the moving party must satisfy the Court that
there is a good reason why the witness cannot be brought before the Court or
will not attend to testify at the trial.
[15]
The only
evidence provided by Apotex as to the reasons given by Dr. Adlington for not
voluntarily giving evidence in this matter, either at the trial or in Canada,
is by way of double hearsay: Mr. Topolski’s affidavit reports that Dr. Scott,
a scientist in the employ of Goodmans, informed him that he had contacted Dr.
Adlington on October 27, 2010 to determine his availability to give evidence
and that Dr. Adlington advised Dr. Scott on October 28, 2010 that “in his view,
he could not provide evidence voluntarily because of an agreement between
Lagap and Lundbeck that he would not be retained by another generic in
matters relating to the Matrix process”. The confirmation letter sent to Dr.
Adlington by Mr. Crofoot, of Goodmans, on December 3, 2010 is slightly
different, citing the reason as “a result of terms of agreement entered into with
Lundbeck”. The affidavit of William Dixon, the English law expert of
Apotex, states on the other hand that he was advised by Mr. Crofoot that
Dr. Adlington had given as reasons “the terms of the settlement agreements
between Lagap Pharmaceuticals and Lundbeck entered into in or about
2004”.
[16]
Anticipating
that the precise terms and scope of any agreement or order preventing
Dr. Adlington from testifying would become relevant on this motion, I
directed Lundbeck’s counsel on December 13, 2010 to “continue their efforts to
secure copies of relevant confidentiality orders or agreements covering
information, documents and/or evidence generated, obtained or produced in the
context of foreign proceedings relating to Matrix’s method of manufacture” and
to communicate same to the Court and to Apotex as soon as it was received.
[17]
Lundbeck’s
response to that direction is apparently contained in the evidence tendered in
response to Apotex’s motion. On that evidence, the only known impediment to
the testimony of Dr. Adlington
arises from the confidentiality Orders issued by the English High Court of Justice,
one of which was made as a result of the settlement agreement between Lundbeck
and Lagap/Sandoz. There may also have been independent confidentiality
undertakings signed by Dr. Adlington in favour of Lagap and/or Matrix, but
that is a matter of speculation. I note, in any event, that this type of confidentiality
undertaking would be quite different from an agreement “with Lundbeck” or
“between Lundbeck and Lagap”, as reportedly referred to by Dr. Adlington.
[18]
The wording used in the
affidavits of Neil Jenkins, the English solicitor who acted for Lundbeck in the
English proceedings, and of John Meidahl Petersen, a representative of
Lundbeck, might be open to some interpretation, suggesting that there might be
other agreements entered into between Lundbeck and Lagap, Sandoz or Dr.
Adlington that would prevent Dr. Adlington from testifying in this matter, of
which Mr. Jenkins would be unaware. However, such an interpretation would be
most contrived. Further, in view of the clear direction issued on
December 13, 2010 and the fact that a representative of Lundbeck swore a
responding affidavit to Apotex’s motion that is entirely silent as to any such
agreement, it is presumed that if Lundbeck was aware of such an agreement, it
has chosen not to disclose or rely upon it. Counsel for Lundbeck at the
hearing confirmed, in any event, that to the extent such agreements existed in
favour of Lundbeck, Lundbeck was indeed waiving the benefit of confidentiality
in respect of Dr. Adlington’s evidence (subject of course to Lundbeck’s
objection to the admissibility of Dr. Adlington’s evidence if confidentiality
restrictions were to prevent Lundbeck from conducting a full and fair
cross-examination (see below)).
[19]
Thus, on the evidence
before me, the only things standing in the way of Dr. Adlington voluntarily
coming to testify in Canada are the confidentiality Orders of the
English High Court of Justice dated November 8, 2002, November 18, 2002 and
October 13, 2003. These
Orders clearly stipulate that Lundbeck and all individuals listed in Schedule
“A” of the Orders, of which Dr. Adlington is one, are to keep the information
at issue confidential and not use it other than for the purpose of the English
proceedings “except with the written consent of Matrix”.
[20]
Matrix
has, expressly and in writing, consented “to release Dr. Adlington and the
parties to that litigation [UK proceedings] from any pledge of confidentiality
respecting specifically Dr. Adlington’s reports, notes, records, observations
and conclusions” for the purposes of the proceedings herein and subject to the
maintenance of confidentiality of the information.
[21]
In
addition, the Orders issued by the English Court specifically exempt from the
confidentiality obligation the reports of Dr. Adlington dated October 6 and/or
October 31, 2002, which appear to relate to the first attendance of Dr.
Adlington at Matrix’s premises in October 2002, or any report or evidence filed
by Lagap or Matrix in parallel litigation concerning the patents. From that,
one can infer that Lagap and Matrix may have previously publicly filed evidence,
including evidence from Dr. Adlington, relating to Matrix’s process, and that
Dr. Adlington was never prevented from testifying as to that evidence.
The Orders appear designed to apply to such evidence as concern the joint
attendance of experts and representatives of Lundbeck and Lagap at Matrix’s
premises in November 2002.
[22]
Whether
Dr. Adlington required Matrix’s leave to offer any testimony in this matter, or
could have offered some testimony in any event, the fact of the matter is that,
on the evidence before me, the reason given by Dr. Adlington to decline to
attend to give evidence at trial and/or in Canada does not or no longer
exists. Apotex has failed to show a good reason why Dr. Adlington cannot or
will not attend at the trial in Canada
to give evidence, and that is enough to dispose of the motion.
[23]
I note
that Lundbeck raised, as part of its objection to Apotex’s motion, the inherent
unfairness of allowing Dr. Adlington to testify as to his observations, reports
or opinions, when the specific and limited waiver of confidentiality given by
Matrix might prevent Lundbeck from using the observations, reports and opinions
of its own experts and observers who were present at Matrix’s facilities in
November 2002 to cross-examine or contradict the evidence of Dr. Adlington.
[24]
Counsel
for Apotex suggested that it would be appropriate for letters of request to be
addressed to the English judicial authorities, as that would allow the English
High Court to resolve any issue as to the application of its own confidentiality
Orders.
[25]
In my
view, it is not appropriate to issue letters of request for such a purpose, nor
would it likely be effective in this instance. The Orders of the English Court are clear: Matrix’s consent
is all that is needed to release any party or individual listed in the Orders’
schedule from their obligation. Whether Matrix’s written consent, as now
given, includes or necessarily implies an additional waiver to permit effective
or fair use of Dr. Adlington’s evidence in this action, whether
Dr. Adlington’s evidence should be admitted in evidence if fair use of
that evidence cannot be ensured, and the extent to which any question that may
be posed by Lundbeck in cross-examination is permissible in view of any
remaining confidentiality stricture are all matters for the trial Judge in this
action. I very much doubt that the High Court of Justice could or would wade
into these debates in the course of receiving letters rogatory in any but the
most superficial manner.
[26]
In any
event, Apotex suggested at the hearing that Matrix had not had an opportunity
to consider Lundbeck’s request for confirmation that its waiver should include
all the individuals listed in the schedule to the English Orders and all
materials used in the UK proceedings, and that Matrix
may yet do so, thus obviating the problem. I note also that to the extent
there are indeed issues arising from the confidentiality Orders or from
Matrix’s partial waiver that can only be resolved by application to the High
Court of Justice, the parties themselves are capable of bringing such an
application to the High Court independently of any letters of request. It is
not appropriate to use letters of request for judicial assistance from this
Court as a vehicle to seek rulings by a foreign court as to the scope or
application of its orders.
[27]
Finally,
considering the scope and subject matter of the evidence proposed to be
canvassed by Apotex with Dr. Adlington, as set out in the draft letters of
request, it appears that much of the proposed evidence might involve the
expression of an opinion by Dr. Adlington. Apotex has not yet served or filed
an affidavit or statement of expert evidence from Dr. Adlington, and any
attempt to elicit opinion evidence from him without prior delivery of an expert
report will undoubtedly raise objections requiring immediate rulings. It would
thus be essential that any testimony to be given by Dr. Adlington be given in
the presence of the trial Judge, and not out of Court.
Matrix’s representatives
a) The right to discovery
[28]
The first
issue to be determined on Lundbeck’s motion for the issuance of letters
rogatory for the discovery of a representative of Matrix in India is whether Lundbeck should be given
leave to compel the attendance of a third party on discovery. The criteria to
be met by Lundbeck for that are as follows:
(a)
That the
third party may have information on an issue in the action;
(b)
That the
party has been unable to obtain the information informally from the person or
from another source by any other reasonable means;
(c)
That it
would be unfair not to allow the party an opportunity to question the person
before trial; and
(d)
That the
questioning will not cause undue delay, inconvenience or expense to the person
or to the other parties.
[29]
Of
paramount issue in this proceeding is the question of whether the citalopram
supplied by Matrix to Apotex between the beginning of 2001 and the end of 2004
was manufactured in accordance with a process infringing the ‘287 Patent owned
by Lundbeck. Matrix, as a manufacturer, clearly has information on that issue.
[30]
Apotex
claims that Lundbeck has not satisfied the second criteria of the test, because
Matrix has “fully” cooperated in providing information when requested by
Apotex, and that Lundbeck’s request for discovery from Matrix ought to have
been or to be submitted to Matrix through the discovery of Apotex.
[31]
Apotex’s
position that Matrix has been or is “fully” cooperating is contradicted by the
evidence before me. On May 27, 2005, Lundbeck examined a representative of
Apotex on discovery and specifically asked Apotex to provide “the detailed
manufacturing process for the active ingredient, the batch records for the
chemical manufacturing and the DMF”, “a copy of the batch records, the
processing instructions, the master formula, the Q & A analysis and the DMF
between 2002 and 2004”, and all documents in regard of Matrix’s change to its
process over time. To all questions, Apotex responded on September 24, 2007
that: “While Apotex has made enquiries for the information from its supplier,
it has not been provided copies of these documents. If same are made available
to Apotex, it will provide same to the Defendants.”
[32]
Matrix did
not cooperate with Apotex on that occasion and did not provide the
manufacturing documents sought – it still has not.
[33]
On October
17, 2008, the Court ordered Apotex to forward to Matrix a letter requesting
Matrix to answer certain questions asked on discovery; the Order provided that
“should Matrix fail to provide the requested information, Lundbeck would be at
liberty to move for examination for discovery of a representative of Matrix”.
Apotex wrote, enclosing the Court’s Order, asking for a response within 30 days
of its letter. Matrix did not comply.
[34]
More
troubling still is the advice given by Apotex to the Court to the effect that
Matrix had destroyed all batch production records for the citalopram it
manufactured for Apotex prior to 2005, pursuant to its document control
policy. Given Lundbeck’s request for those documents through Apotex and given
the importance of these documents, that they would have been destroyed by
Matrix is troubling indeed. To further add to this, I note that the document
control policy in question, as submitted by Apotex on its motion, provides for
a retention policy of 6 years; yet, in the fall of 2010, when the advice was
given that documents pre-dating 2005 had been destroyed, documents relating to
production in 2004 should not yet have been destroyed. The policy in question
also provides that “documents relating to any legal proceedings must not be
destroyed until the legal proceedings are declared closed”; on the evidence
before me, it appears that Matrix was very well aware of the proceedings herein
and had pledged to Apotex in 2004 that it would extend any help that may be
required in this proceeding.
[35]
On the
basis of the above, it is abundantly clear that Matrix is not fully
cooperating, that Apotex is unable or unwilling to ensure full cooperation from
Matrix, or that Matrix’s idea of fully cooperating with Apotex may involve
tactics with which Apotex may think better than to be associated with.
[36]
In
addition, Apotex and Matrix have now confirmed that they intend to have a
representative of Matrix appear at trial to give oral evidence of Matrix’s
manufacturing process between 2001 and 2004, when the contemporary documents
that might have corroborated or contradicted that evidence have reportedly been
destroyed, when the matter is crucial to the outcome of the proceedings and
vigorously contested, and when the interpretation and credibility of the
evidence will likely require expert opinion. Given these circumstances, it is
clear that it would be unfair not to allow Lundbeck an opportunity to question
the representative of Matrix before trial, and that questioning of Matrix
through questions addressed to Apotex – even if Matrix could be relied upon to
fully cooperate from this point on – would not be reasonably effective, given
the complexity of the issues, to ensure that Lundbeck obtain all relevant
information from Matrix prior to trial.
[37]
Given that
the reported destruction of the batch records for citalopram supplied to Apotex
by Matrix between 2001 and 2004 and the announced attendance of Matrix at trial
are the most important factors in my determination that Lundbeck be granted
leave to examine Matrix on discovery, and given that both Matrix and Apotex
could have prevented that situation from arising, any inconvenience or expense
to Apotex or Matrix from the questioning would not be undue, in the
circumstances.
b) Identification of Matrix’s
representative
[38]
As part of
its motion, Lundbeck also asks that Apotex be compelled to disclose to it and
to the Court the identity of the representative or representatives of Matrix
capable of answering questions relating to Matrix’s manufacturing processes and
which Apotex intends to call as witnesses at trial. Apotex has so far refused
that request on the basis that it is under no obligation to do so. Neither
party could refer to any precedent where the issue has been considered by the
Court.
[39]
It seems
to me well within the powers of a case management Judge to order Apotex to
disclose the precise identity of the representative or representatives of
Matrix whom it intends or expects to call at trial to ensure that Lundbeck be
allowed to question on discovery the very same person or persons. Because the
representatives of Matrix to be called at trial will presumably be testifying
on the basis of their personal knowledge, one expects that they will be
knowledgeable of the subject matters to which they will testify and that they
are therefore the appropriate representatives to be discovered. And because
the discovery transcript of a third party may only be used at trial to
cross-examine that third party if he or she is called as a witness at trial,
justice, fairness and the achievement of the purpose of the necessary discovery
require that the discovery be made of the same individual or individuals who
will be testifying at trial.
c) The form of the letter of
request
[40]
The
experts for Lundbeck and Apotex both agree that Indian judicial authorities
would, in principle, accept to give effect to letters of request from this
Court for the purposes of compelling a witness in India to subject to an examination on
discovery and to produce documents. The expert for Apotex, however, opined
that the proposed letters of request, as originally submitted by Lundbeck,
failed to be sufficiently precise as to the nature and time period of the
documents to be produced and the subject matter about which the witnesses are
to be questioned. When Lundbeck submitted, at the Court’s request, a revised
draft of the letters of request containing further specifics, Apotex objected
to most of the proposed subject matters and documents, on the ground of
relevance, over-breadth, lack of specificity and/or lack of necessity, as the
information would be obtainable directly from Apotex.
[41]
The Court
is satisfied that the subject matters proposed for questioning and the
documentary production requested by Lundbeck are generally appropriate.
[42]
As
mentioned in the direction of December 13, 2010, in the reported absence of the
batch records for the citalopram actually supplied to Apotex, evidence showing
that Matrix was manufacturing or was capable of manufacturing citalopram for
other generics by a non-infringing process might be used to show a likelihood
that Matrix also manufactured citalopram for Apotex by that same process –
hence Apotex’s desire to secure the testimony of Dr. Adlington. As case
management Judge, I am also aware that documents have been produced indicating
that Matrix may have patented that process, and that Matrix’s prices for supply
of citalopram produced by that process were reported to be higher than prices
quoted for citalopram produced by an infringing process. Enquiries into
Matrix’s comparative costs and prices for citalopram may therefore provide
further indications of the process used in Apotex’s case. As Apotex and Matrix
allege that Matrix moved from an infringing process to a non-infringing process
around September 2001, Matrix’s policies as to the filing of applications for
patents may also throw light on the timing of the alleged change.
[43]
The orders
and judgments of the Danish and Norwegian Courts on motions for interlocutory
injunctions, submitted by Apotex in support of its motion, also show that there
was significant controversy in those proceedings as to whether the sample batch
production records produced by Matrix in these proceedings were authentic and
whether the process witnessed could form the basis of commercial scale
production, or at a rate sufficient to account for the volumes supplied by
Matrix. It was noted by both Courts that the purposes of the attendance at
Matrix had been the observation of the process, not the investigation of the
authenticity of the documents. The trial here will be on the merits; the same
issues are likely to arise; thus, Lundbeck’s proposed enquiry into steps
upstream and downstream of the patented process and any changes thereto, into the
documents surrounding chemical and quality control analyses and into the
quantities of citalopram produced in the relevant period are all potentially
relevant to verify, corroborate or contradict Matrix and Apotex’s allegations.
[44]
As regards
the subject matters concerning which Lundbeck has already had discovery of
Apotex, or which it could have explored on discovery of Apotex, I do not find
that Lundbeck should be prevented from exploring those questions with Matrix as
well, especially since they are issues upon which Matrix has direct knowledge.
[45]
Apotex
objects that a request for production of “any documents” that would show
Matrix’s capacity to use a non-infringing process is improper, overly broad and
open-ended, and that it would require the witness to make judgments as to what
certain documents reveal. I do not accept Apotex’s argument in the
circumstances.
[46]
Matrix is
quoted by its Canadian agent as having made the following written statements:
“(d) Matrix spent significant sums
of money and organizational resources such as R&D and top management time
in helping their European generic customers to successfully handle these
litigations.
(e) Matrix is willing to use their
above experience and thus strengthen Apotex’s case resulting out of the
innovator suing Apotex over CA2360287.
(f) Matrix is willing to share
all details pertaining to their process and extend any help that may be
required including the presence of Matrix personnel in Canada during the litigation if necessary, in
order to assist Apotex.”
(See exhibit A to the affidavit of Jerry
Topolski)
[47]
Thus, it
is expected that Matrix will know very specifically what documents are in its
possession to show that very fact. As mentioned, if Matrix is to voluntarily
appear at trial in Canada to assist Apotex in establishing both that it has
manufactured citalopram for Apotex with a non-infringing process and that it
had the capacity to do so, then any document it might seek to tender for that
purpose must be disclosed to Lundbeck well before trial and Lundbeck be given
an opportunity to have discovery thereon. It is also fair that Lundbeck be
permitted to directly put to Matrix, and well before trial, requests for
production of any such documents, if only to be able to argue, if no documents
have been produced and no explanation given, that a negative inference should
be drawn.
[48]
It should
be remembered that in all examinations on discovery, whether a specific
question, falling within a broadly relevant subject matter, is nevertheless
relevant, appropriate or necessary, is a matter of appreciation, which cannot
be ruled upon in advance. No doubt Apotex or Matrix will voice objections to
specific questions where appropriate. Hopefully, all parties will cooperate to
reformulate or narrow questions, where appropriate, or agree to allow the
witness to answer under reserve of objection.
[49]
With
respect to Apotex’s expert’s comment to the effect that the proposed letter of
request “does not include any statement providing for the reimbursement of the
costs of the witness”, he does not go further to say that this would be a
formal requirement for the letter of request to be received by the Indian
Court. To the extent the Indian
Court requires
an undertaking that the witness’s costs be reimbursed, this obligation should
fall on Lundbeck, and it is expected that Lundbeck or its Indian counsel on its
behalf, will include the appropriate undertaking when they present the letter
of request to the Indian
Court.
[50]
Finally,
Apotex’s Indian law expert opined that advanced production of documents, as
requested by Lundbeck, “is not provided for under the applicable Indian Rules (Order
XXVII rules 19-22)”. The expert of Lundbeck, however, rendered an opinion to
the effect that the commissioners to be appointed by the Indian Court would
have, by virtue of rule 16 of Order XXVII (referred to in rule 22 of the said Order),
the power to ask the witness to submit documents in advance of the
examination. Lundbeck’s expert’s reliance on a specific provision, not
directly addressed by Apotex’s expert, satisfies me that there is a reasonable
likelihood that the Indian Courts would give effect to the proposed letter of
request as drafted. To the extent the receiving Court is of the view that the
commissioner’s powers cannot include the power to request advanced production
of documents, this Court hopes that the Indian Court will make such adaptations to the
request as will give it effect to the extent permissible under Indian Law.
[51]
I would
add that, given that this Court has now ruled that Lundbeck is entitled to
examine a representative of Matrix on discovery on all the proposed subject
matters, and that the documentary production sought from it is appropriate, and
given that Apotex and Matrix have professed full cooperation, it would be
disappointing that Apotex or Matrix would demand that a formal order from an
Indian Court be issued before producing or making available for inspection and
copying the documents requested, or indeed, before the representative of Matrix
who will be coming to testify at trial will voluntarily make himself or herself
available to be examined on discovery. Indeed, in the circumstances, should
for any reason Lundbeck be unable or precluded from having discovery of a
representative of Matrix subsequently called to testify at trial, the
admissibility, credibility or weight to be given to the testimony of that
witness would be a matter within the discretion of the trial Judge.
“Mireille Tabib”
Ottawa, Ontario
January
26, 2011
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