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Party Has Prima Facie Right To Select Discovery Representative

The Federal Court recently issued a decision dealing with a discovery motion requesting a specific individual as a representative for discovery and the test that must be met to succeed on such a motion.

The motion was commenced by Eli Lilly in the context of Teva’s action seeking damages for allegedly false or misleading statements made by Eli Lilly with respect to Novo-olanzapine. In the first round of discovery, Teva put forward a witness from its Finance department. Eli Lilly then sought, pursuant to Rule 237(3), the substitution of a different individual on the basis that the first representative was ill-informed or non-informed of relevant matters.

Justice Phelan reviewed the applicable jurisprudence and noted that it is the examined party’s prima facie right to put forward the representative it wishes:

It is the examined party’s right prima facie to put forward the representative it wishes. Lilly has not established that the chosen witness is “incapable of giving evidence of his own knowledge or by informing himself …” (Liebmann at para 31). Lilly has also not established that anyone else (Creighton, for example) is in a better position to give evidence for the corporation on all the matters in this case, although she may be knowledgeable on specific aspects.

Justice Phelan also ruled on the propriety of questions refused in discovery, and the propriety of redactions that had been applied to documents. He held that redactions applied to unrelated litigation and unrelated branded product did not have to be removed as they were irrelevant to the issues in dispute.

Justice Phelan’s Order and Reasons may be found here.

Teva was represented by Aitken Klee LLP.