Attendance of the Opposing Party at Experiments to Be Relied on at Trial

Dow Chemical Co v Nova Chemicals Corp 2012 FC 754 O’Keefe J
            2,160,705

In this recently posted 2012 decision, O’Keefe J ordered that the plaintiff / patentee, Dow, permit experts retained by the defendant, Nova, to attend testing and experiments that Dow intended to rely on at trial. Dow had proposed instead to provide the defendant with a video of the experiments and information such as the raw data generated during the procedure [7].

After reviewing the relevant jurisprudence, O’Keefe J held that:

[51] I find it is the practice of this Court to allow attendance of the opposing party at testing conducted in support of the action, the results of which are planned to be used at trial.

and

[58] In summary, I find that it is a practice of this Court not to accept a party’s evidence of tests and experiments where notice and an opportunity to attend have not been given to the opposing party.

While Dow raised a number of arguments, the most serious concern, as I read it, was that because the testing would take place at Dow’s research labs at a number of different locations over a period of over four and a half months, “the defendant’s presence at the plaintiffs’ laboratories during trial testing would disrupt the regular functioning of these laboratories and require the plaintiffs to cease operation of all research and development (R&D) projects in those laboratories during this time,” [24] (and see similarly [28]). Dow viewed this as a particular concern because “the defendant’s expert, Dr. Mirabella, is not truly independent. The plaintiffs note that Dr. Mirabella has consulted exclusively for the defendant since early 2009” [29].

In addressing this point, O’Keefe J held that

[56] I also do not find that the plaintiffs’ privacy concerns are warranted. As stated by the defendant, all of its experts are covered under the protective order issued by this Court. In addition, visitors to the plaintiffs’ facilities will likely only be granted access under the terms of a confidentiality agreement.

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