An untimely discovery: A case study of Meridian Manufacturing Inc v Concept Industries Ltd
Discovery facilitates the exchange of crucial information necessary to build a case and ensure a fair resolution. In patent infringement disputes, parties must be rigorous during discovery to uncover evidence and clarify claims. The recent case of Meridian Manufacturing Inc v Concept Industries Ltd shows the importance of providing complete and timely information during discovery.
In the underlying case, Meridian commenced an action for patent infringement against Concept relating to hopper bottom storage units (Canadian Patent No. 3,036,430). Meridian’s action was commenced in December 2020, and Concept delivered its affidavit of documents in December 2021, together with 22 documents identified in its Schedule 1. After an unsuccessful motion for summary judgment was decided on January 4, 2023, a schedule was set that required examinations for discovery to be completed by September 15, 2023. Counsel for Meridian wrote twice to Concept’s counsel before discovery, seeking confirmation that Concept had produced all relevant documents in its possession, power, or control. When Concept delivered its answers to undertakings on October 27, 2023, it produced 68 new documents; in February 2024, it produced a further set of 60 new documents. Included within this production set were documents that the Court concluded had been obtained and identified prior to the discovery in September 2023.
Concept’s alleged delay in producing relevant documents for discovery was one of the issues in the motion before the Court. The Federal Court Rules, including Rules 223, 227, and 232, lay out the obligations relating to producing documents and information during discovery and the consequences for incomplete production. Rule 223 underscores the necessity for parties to address any deficiencies or inaccuracies in their statements promptly. Rule 227 grants the Court the authority to impose sanctions for inaccurate or deficient statements. Furthermore, Rule 232 forbids parties from using undisclosed information at trial without court permission.
The Court accepted that Concept’s late documentary production was an interruption. While the failure to provide timely disclosure was concerning to the Court, the Court did not impose penalties such as striking out parts of Concept’s pleadings or forbidding the use of the relevant documentation in court under Rules 227 and 232. The absence of any evidence of deliberate concealment on the part of Concept guided the Court’s decision. The Court also noted that there could have been little benefit for Concept to hide or refuse to produce the documents in question, as they were material to its invalidity defences.
However, the Court directed Concept to pay the costs Meridian incurred because of Concept’s incomplete disclosures, highlighting the need for parties to adhere to their discovery obligations. Concept was also mandated to provide particulars of prior art and produce unredacted documents, ensuring transparency and fairness in the discovery process.
