PRACTICE |
Discovery |
Examination for Discovery |
DuPont Canada Inc. v. Emballage St-Jean Ltée.
A-582-99
Richard C.J.
13/12/00
7 pp.
Appeal from dismissal of appeal ([1999] 4 F.C. D-67) of Prothonotary's order requiring DuPont to answer questions from examination for discovery relating to DuPont's knowledge of composition, density of respondent's film--Discovery conducted as part of action for infringement of DuPont's patent relating to pouches filled with flowable material--DuPont objecting to answering questions on basis of privilege--DuPont's in-house lawyer requesting performance of tests, experiments on respondent's film to assist in determination of whether infringement in preparation for, during conduct of, litigation--Results either sent to her in memo or forwarded to her by those who performed tests--Results since maintained in confidence--Conceded facts sought on discovery relevant to claim of infringement--Respondent seeking only discovery of facts relied on by DuPont--Global Petroleum Corp. v. CBI Industries Inc. (1998), 172 N.S.R. (2d) 326 (C.A.) holding privilege cannot be used to protect facts from disclosure if those facts relied on by party; if relied upon, must be disclosed--Respondent not seeking access to any legal advice, opinion, evaluation--Not asking question directed generally to test results--Question concerning density of film specific, relevant to allegation of fact relied upon by plaintiff in pleadings--Immaterial that facts relied on by DuPont discovered through solicitor--Appeal dismissed.