January 5, 2021
In Sunovian Pharmaceuticals Canada Inc. and Sumitomo Dainippon Pharma Co., Ltd. v. Pharmascience Inc. (2020 FC 1080), the Federal Court clarified the scope of disclosure required by parties when preparing their affidavits of documents.
The Defendant, Pharmascience Inc. (“Pharmascience”) brought a motion seeking relief in connection with the Plaintiff’s affidavit of documents. The Plaintiff, Sumitomo Dainippon Pharma Co., Ltd. (“Sumitomo”) had commenced an action under the Patented Medicines (Notice of Compliance) Regulations (“PMNOC Regulations”) relating to four patents associated with the medicine, lurasidone.
Pharmascience alleged that Sumitomo’s affidavit of documents contained two major deficiencies, both of which contravened its obligations under the Federal Courts Rules.
The first issue related, generally, to the content of Sumitomo’s affidavit of documents. Pharmascience contended that the majority of items listed in Schedule 1 failed to include sufficient information to allow identification of the documents. For instance, all of Sumitomo’s entries lacked a recipient, the majority lacked a date or author, and over half were in Japanese or were unintelligible. Moreover, Sumitomo had altered the language in its affidavit of documents to include qualified language surrounding disclosure. This language effectively deviated from that required under Form 223, stating instead that “…all of the documents that may be relevant to any matter in issue in this action...” would be disclosed.
The second issue raised by Pharmascience related, specifically, to the number of documents produced in respect of the 265 Patent. Pharmascience argued it was “incomprehensible” that only four documents relevant to this patent were in Sumitomo’s possession, power and control.
Accordingly, Pharmascience requested various Orders from the Court pursuant to Rules 3, 223, 225, 226 and 227 of the Federal Courts Rules. In summary, Pharmascience sought:
An Order requiring Sumitomo to disclose only the relevant documents in its possession, power and control;
An Order requiring Sumitomo to serve and deliver an accurate or complete affidavit of documents that contains information in English, including: a description of the substance of each document, the date of each document, and the author/recipient of each document;
An Order requiring Sumitomo to produce the English-translated version of all documents in the affidavit of documents that are in a foreign language; and
An Order striking out all or portions of Sumitomo’s Reply related to the 265 Patent. Alternatively, Pharmascience requested that it be entitled to cross-examine Sumitomo’s deponent of the affidavit of documents.
Federal Court’s Decision
The Court found that Sumitomo’s affidavit of documents was incomplete and ordered that a further and better version be prepared. The Court acknowledged that, with electronic productions, a party’s obligations may be satisfied when numeric identifiers are provided for each document. In this case, however, the Court found that the numeric identifiers were insufficient as the majority of documents and any metadata for those documents were in Japanese. Accordingly, the Court stated that a general description, date and author would greatly improve Pharmascience’s ability to identify the entries listed.
The Court also clarified the obligations of litigants when completing Form 223. Specifically, the Court stated that the language regarding disclosure is not discretionary nor can it be altered to accord with the facts of a specific case. Rather, “the obligation on the affiant is to attest to the documents included in the affidavit of documents as being, to their knowledge, information and belief, the relevant documents in the party’s possession, power and control.”
When asked to consider the translation issue, the Court found that it would be disproportionate and contrary to the spirit of Rule 3 of the Federal Court Rules to require Sumitomo to translate each Japanese document produced. Instead, the Court ordered Sumitomo to produce any translations of documents previously obtained and any others obtained in the future, on an ongoing basis.
Finally, regarding Sumitomo’s scarce production for the 265 Patent, the Court declined to strike the impugned paragraphs of the Reply. The Court reasoned that striking a party’s pleadings is a drastic remedy invoked in exceptional circumstances, such as when there has been an abuse of process. In this case, Pharmascience had provided no evidence to support such a remedy. That said, the Court did grant Pharmascience the right to cross-examine Sumitomo’s deponent regarding the documents produced in respect of the 265 Patent.