For The Defense, December 2011 - DRI Today

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ThInk gLObaLLy 10 Tips Obtaining Evidence Successfully in Canada to Use in a Foreign Proceeding By Richard McCluskey and Lisa Parliament With an increasing number of cross- border transac- the interests of justice. To the extent possible, a letter of tions occurring in today’s marketplace, evidence rele- request should make it clear that justice cannot be served vant to a dispute in one jurisdiction can be located on the between the parties without the Canadian evidence. It other side of a border. When relevant documents or wit- should also explicitly state that the requester needs the nesses find themselves within Canada, foreign litigants evidence for pending rather than anticipated litigation. will need to initiate the two-step process for obtaining 3. Identify the evidence sought with reasonable evidence abroad through a mechanism known as a “let- specificity. A Canadian court may not enforce a letter of request.” First, a party seeking to compel Canadian ter of request if the information seeker does not clearly evidence must bring an interlocutory motion or applica- identify the information. Canadian courts have consistion before the court in which the litigation is pending to tently refused requests that amount to fishing expedi- have that court issue a letter of request. Second, the party tions. However, Canadian courts may enforce overbroad must bring an application before a court in the Cana- requests in part, and they may enforce more restricted dian jurisdiction where the evidence is located seeking forms of requests outlined in the letters. To increase the an order enforcing the letter of request. odds that you will achieve successful enforcement, a let- While Canadian courts have discretion regarding ter should list the documents sought by class or cate- enforcing letters of request, they are usually inclined to gory, at a minimum. show deference to a foreign court’s request in the inter- 4. Explain why the evidence is not otherwise ests of promoting comity. That said, Canadian courts obtainable. If the information sought is available in the have also made it clear that when they have applica- foreign jurisdiction, by which here we mean someplace tions for orders enforcing letter of requests before them, other than Canada, the Canadian court probably won’t they will not rubber- stamp them, and Canadian courts enforce a letter of request. Similarly, a requesting party should not enforce letters of request routinely. should first attempt to obtain the documents voluntarily. Below we offer 10 practical tips for foreign litigants And Canadian courts will require more than bare asser- to make obtaining evidence in Canada as smooth a protions that evidence is otherwise unavailable. cess as possible. 5. Ensure that a request does not contravene 1. Establish with sufficient detail that the evi- Canadian public policy. Courts will not enforce letdence sought is relevant. Canadian courts will only ters that are manifestly unjust or immoral. A Canadian enforce letters of request when the evidence sought is court asked to enforce a letter of request will also weigh obviously relevant to the foreign litigation. Canadian whether the evidence is necessary against the proposed courts interpret relevance narrowly, and potential rel- order’s impact on Canadian sovereignty. Courts are speevance is insufficient. A Canadian court will consider cifically loath to enforce requests that amount to extra- whether the requested evidence is squarely related to the territorial applications of foreign policy objectives. allegations set out in the foreign pleadings. 6. Ensure that a request is not unduly burden- 2. Demonstrate that the evidence is necessary for some. Take steps to minimize inconveniencing the per- pretrial discovery purposes or for a trial. A Canadian son or entity from which you seek evidence. A Canadian court will consider whether the evidence is necessary to court will evaluate the burden placed on a non-party witness and compare it with the probative value of the evi- ■ Richard McCluskey is an associate in the Litigation and Dispute Resolution dence. The more onerous the request, the less likely a Group at McMillan LLP in Toronto. He maintains a broad civil and commercial lit- court would grant it. igation practice and is developing expertise in cross- border litigation. Lisa Par- 7. Consider whether you are making a documenliament is a partner in McMillan’s Litigation and Dispute Resolution Group, with tary request or a request to examine a witness. In expertise in product liability and class action defense. She regularly advises lead- general, a Canadian court will consider the same factors ing companies on multi- jurisdictional coordination and cross- border issues, risk whether enforcing a documentary request or a request to assessment and management, and litigation management. Think Globally
Cell Phone, from page 30 field exposure as it develops, to stay on the phone radiation case stated that “state-law claims would upset the balance” of safety and efficiency struck by the FCC standards. Amicus Curiae Br. of United States & Fed. Comm. Comm’m, Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009). In the future, courts likely will defer to this agency determination of conflict with state laws. See Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1139 (2011). Conclusion Though cell phone radiation litigation probably will not succeed, attorneys representing defendants and potential defendants can and should nonetheless recommend the following two measures to reduce exposure. First, recommend that potential defendants continue to follow the science on the hazards of radiofrequency electromagnetic Falling asleep, from page 70 enforce the 70-hour rule could result in sloppy logging of on-duty time with the concomitant risk of exceeding the time limitation, thus causing fatigue.” Id. This was enough for the court to send the punitive damages decision to the jury. Id.; see also Came v. Micou, 2005 WL 1500978, at *5 (M.D. Penn. Jun. 23, 2005) (“failure to conduct any investigation into [the driver’s] hours of service… constitutes reckless indifference to the rights of others”); McAchran, 2009 WL 888539, at *6 (reversing a summary judgment on the punitive damages claim in favor of the defendant and remanding the case for trial on punitive damages in part because the carrier “failed to take any actions to ensure specifically that [the driver] did not violate the federal regulations regarding maximum allowable hours of service”); Innovative Container Company, LLC v. Son Light Trucking, Inc., 2006 WL 895021, at *8 (D.S.C. Apr. 3, 2006) (finding the motor carrier “exhibited a conscious indifference to the consequences of exceeding the hours- of- service requirements by putting a tired driver on the road and destroy[ing] the logbooks to prevent uncovering this information”). Courts view a motor carrier’s failure to monitor HOS compliance as “send[ing] a message to drivers that hours of service cutting edge of consumer safety. And recommend that potential defendants also document their consumer safety efforts informed by the science. While this science now does not appear to establish a link between radiofrequency electromagnetic field exposure and adverse health effects, conceivably the prevailing scientific view could change. In that event, defendants that could point to a record of inquiry into and adherence to state-of-the-art safety standards would have a potent defense during trials. Second, when representing defendants in state courts, defense attorneys should consider removal. Some states have more lenient standards for the admission of expert testimony, raising the possibility that a court could admit as evidence the questionable science cited in the IARC report. The IARC does plan to release a longer version of the report, although it prob- violations were acceptable conduct.” Trotter, 2006 WL 1004882, at *7. Clearly, the goals of deterrence and punishment underpin these decisions. A related but separate reason courts permit juries to consider levying punitive damages against a motor carrier is that the carrier provided incentives to its drivers to work long hours or forego adequate rest. For instance, in Briner, the court criticized the livestock carrier’s payment system, which paid its drivers a percentage of the gross truck revenue. Briner, 337 N.W.2d at 868. The greater the number of truckloads, the more the drivers earned. Id. If a driver could not make it to a loading site early in the morning, then loading the livestock would be put off until another day. Id. Thus, a driver had “great incentive to arrive by early morning.” Id. Because the court found that the carrier was “fully aware of the habits of [its] drivers,” it overturned the motion for a summary judgment in favor of the defense and remanded the case for a jury trial on punitive damages. Id. As mentioned briefly above, if the case facts suggest that profits may trump safety for a carrier, a court will likely permit a jury to consider awarding punitive damages. Trotter offers one striking example: the carrier’s director of safety explained during his deposition that “my own gut ably will not include anything that would make the IARC cell phone findings more credible evidence. See Press Release 208, IARC Classifies, supra, at 1; Baan, et al., supra, at 624. Also, federal courts tend to rule on issues of preemption more frequently that state courts. Given federal courts’ relative familiarity with preemption doctrine, it is more probable that they will rule that federal law preempts a radiofrequency electromagnetic field lawsuit. In sum, although it appears unlikely at this point that those involved in mobile telephony will incur significant liability for personal injuries caused by radiofrequency electromagnetic field emissions, defense attorneys advising those parties would do well by those clients by preparing them to defend themselves on the general causation front, given the potential number of claimants. reaction, if you will, was that money took precedent over safety” for the carrier. 2006 WL 1004882, at *7. The court explained that “‘[m]oney [taking] precedent over safety’ is virtually the definition of the kind of corporate behavior warranting an award of punitive damages.” Id. A less common reason courts will permit juries to consider awarding punitive damages is that a carrier had knowledge of a driver’s history of a fatigue problem and failed to address it adequately. For instance, in Matthews, the bus driver was involved in a previous, fatigue- related accident while employed by the company, and the company didn’t complete the background check on the driver, failing to get a report concerning the driver’s previous employment that it had requested but didn’t receive, which would have revealed that the driver had two other fatigue- related accidents. 882 F. Supp. at 149. This was sufficient to defeat a summary judgment motion on the punitive damages claim. Id. In Came, the fact that the carrier knew about one of the driver’s previous accidents involving fatigue, and should have known about two other previous accidents involving fatigue, contributed to the court’s decision to deny a summary judgment request on the punitive damages claim. Came, 2005 WL 1500978, at *5. For The Defense ■ December 2011 ■ 81
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Product LiabiLity specific faciliti
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