In MediaTube v Bell, an action alleging infringement of the plaintiffs’ patent by Bell’s Fibe TV systems, discovery of the plaintiffs entailed nearly 10,000 questions. Of these, approximately 1,000 were refused or taken “under advisement.” The Bell Defendants brought a motion to compel re-attendance for further oral discovery on the basis that the large number of questions taken under advisement constituted an abusive attempt to shield the witness from answering questions.
The Court agreed with Bell and lambasted the current trend in litigation involving the “over abundance of interruptions in an examination by the use of a quasi objection such as ‘under advisement’.”
Prothonotary Aalto noted that the Federal Courts Rules do not provide the ability to take questions under advisement, but rather allow only four categories of objections at an examination for discovery (Rule 242(1)):
- The answer is privileged;
- The question is not relevant;
- The question is unreasonable or unnecessary; or
- It would be unduly onerous;
While recognizing that under advisements will happen to some small extent on discoveries, Prothonotary Aalto held that the Court will not permit them to be used as a weapon to interfere in the flow and conduct of an examination. Generally, counsel must object on proper grounds or let the witness answer:
“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.
The Court ordered the Plaintiffs to re-attend for further oral discovery to answer any questions they agreed to answer (rather than to provide written answers as would normally occur).
Prothonotary Aalto further noted that “refusals motions have become the scourge of litigation in this Court, particularly IP litigation” and that, absent exceptional circumstances, refusals motions should address no more than about 50 questions.
A copy of the Federal Court’s Order and Reasons can be found here.