Coquitlam Lawyer: Witnesses in America & the “Letter Rogatory”

At times in civil litigation files (e.g., class actions; wills & estate litigation; personal injury; and/or commercial litigation), we must have an American citizen residing in the US, testify.

A Canadian subpoena has no force or effect on US Citizens presently residing in America.

Sending a Canadian (of any Province) subpoena to a US witness, unfortunately, has no force or effect. As lawyer we are not able to compel a US witness to testify via subpoena.

Instead, what Canadian lawyers must do is obtain a Letter Rogatory. The recent case of Club Exploria, LLC v Moore, 2021 BCSC 816, discussed the importance of a Letter Rogatory. The Petitioner in this case (Exploria) obtained a Letter Rogatory from a US District Court of Northern District of Illinois (the “Illinois Court”), requesting one of the Defendants (Joshua Grant and a representative of Prospects DM, Inc. (“Prospects DM Inc.”)) to testify at a deposition and produce documents in relation to a proposed class action in the United States (the “Illinois Action”). The Petitioner then applied to the BC Court to have the Letter Rogatory enforced, compelling Prospects DM Inc. and Mr. Grant to be deposed and produce the documents requested.

The background of the case was noted in para. 2 of the Reasons for Judgement as follows:

[2] …George Moore is the plaintiff and Exploria is the defendant in the Illinois Action. The Illinois Action is a proposed nationwide class action, in which Mr. Moore alleges that Exploria, which sells vacation packages through various marketing programs, violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 [TCPA]. Mr. Moore alleges Exploria did so by hiring multiple vendors to place pre-recorded calls on its behalf as part of a telemarketing campaign to sell vacation packages in Florida. Mr. Moore alleges he received two phone calls as part of this campaign, despite the fact his name was on a do-not-call registry and he did not consent to receive such calls, in violation of the TCPA.

TRI-CITY LEGAL has extensive experience in compelling US witnesses in various complex litigation cases. We are here for all your legal needs. No file is too complex or costly with our deep resources. Contact us now.

No file is too complex or costly.

In her decision, Madam Justice Lyster ultimately granted the Petitioner’s request substantively reviewing the law as follows:

The Letter Rogatory

[6] Exploria applied for and obtained the Letter Rogatory from the Illinois Court on September 1, 2020. The Letter Rogatory asks for the assistance of this Court to compel the attendance of a representative of Prospects DM Inc. and Mr. Grant at depositions to be conducted in this province. The matters about which they would be examined are listed in schedules to the Letter Rogatory, as are the documents they would be required to produce. The depositions would be transcribed, and the testimony and documents produced are intended for the trial or preparation for the trial of the Illinois Action. The Illinois Court is satisfied that the testimony and documents would be relevant to the claims and defences in that case.

[7] The Illinois Court goes on to state that it is satisfied that the evidence sought is directly relevant, material and necessary, and cannot reasonably be obtained by other methods. The Illinois Court explains at some length how, in its view, Prospects DM Inc. and Mr. Grant were involved in the telemarketing campaign, and thus why their evidence would be material and necessary…

[8] The Illinois Court was satisfied that it is in the interests of justice for Prospects DM Inc. and Mr. Grant to be examined and to produce the documents sought. It notes that it has issued an Agreed Confidentiality Order which would extend to the testimony and evidence produced by Prospects DM Inc. and Mr. Grant. The Illinois Court requests this Court to compel Prospects DM Inc. and Mr. Grant to produce the documents sought at least 21 days prior to their depositions, and to compel them to testify under oath. The Illinois Court requests that the examinations be conducted pursuant to the discovery rules provided in the Federal Rules of Procedure of the United States, “except to the extent that such procedure is incompatible with the laws of British Columbia”. It further refers to certain privileges available to witnesses under the laws of the United States, in particular solicitor client privilege and privilege against criminal self-incrimination. Finally, the Illinois Court states that fees and costs incurred in the execution of the Letter Rogatory that are reimbursable will be paid by Exploria.

Analysis

[9] This Court’s authority to enforce letters rogatory from foreign courts is found in s. 53 of the Evidence Act, R.S.B.C 1996, c. 124. It provides:

Power to order examination of witness under commission issued by foreign court

53 (1)  If, on application, it is made to appear to the Supreme Court that a court or tribunal of competent jurisdiction in a foreign country has, by commission, order or other process, duly authorized obtaining the testimony of a witness outside of its jurisdiction but within the jurisdiction of the Supreme Court and the testimony relates to an action, suit or proceeding pending in or before the foreign court or tribunal, the Supreme Court may

(a)  order the examination of the witness before the person appointed, and in a manner and form directed by the commission, order or other process,

(b)  by the same order or a subsequent order, command either or both of the following:

(i)  the attendance of the named witness for the purpose of being examined;

(ii)  the production of any writing or other documents mentioned in the order, and

(c)  give directions regarding

(i)  the time, place and manner of the examination, and

(ii)  all other matters connected with the examination that appear reasonable and just.

(2)  An order made by the Supreme Court under subsection (1) may be enforced, and any disobedience of it punished, in the same manner as an order made by the Supreme Court in a cause pending in the Supreme Court.

(3)  A person whose attendance is ordered under this section is entitled to the same conduct money and payment for expenses and loss of time as on attendance at a trial in the Supreme Court.

(4)  A person examined under the commission, order or other process referred to in subsection (1)

(a)  has the same right to refuse to answer any questions that the witness would be entitled to refuse to answer in a cause pending in the Supreme Court, and

(b)  is not compelled to produce at the examination any writing or document that the person would not be compellable to produce at the trial of the cause referred to in paragraph (a).

(5)  If the commission directs, or the instructions of the court accompanying it direct, that the person to be examined must be sworn or must affirm before the commissioner or other person, the commissioner or other person has authority to administer an oath or affirmation to the person to be examined.

[10] Monster Energy Company v. Craig, 2016 BCCA 290 [Energy], is the leading authority in this province with respect to the enforcement of letters rogatory. It provides at para. 11 that “the starting point is the presumption that the request from the foreign court will be granted unless it would be contrary to Canadian public policy to do so or would otherwise be prejudicial to Canadian sovereignty or to Canadian citizens”. The court in Energy referred at para. 13 to the decision of Madam Justice L. Smith in EchoStar Satellite Corporation v. Quinn, 2007 BCSC 1225 [EchoStar], for the following list of factors to be considered in determining whether to give effect to letters rogatory:

1. Relevance;

2. Whether the evidence is necessary for trial and will be adduced at trial if admissible;

3. Whether the evidence is otherwise obtainable;

4. Whether the order sought is contrary to public policy;

5. Whether the documents sought are identified with reasonable specificity; and

6. Whether the order sought is unduly burdensome having in mind what the witness would be required to do and produce were the action to be tried locally.