5.11: Order for record to be produced
5.13: Obtaining records from others
5.2: When something is relevant and material

Case Summary

Nova Chemicals Corporation (“Nova”) brought an Application for an Order compelling Dow Chemical Canada Inc. and Dow Europe GmbH (collectively “Dow”) to provide further and better answers to Undertakings and Interrogatories. The Action involved allegations that Nova had unlawfully taken product from a plant to which Dow and Nova were joint owners.

Nova sought information from Dow that was in the possession of the Dow parent company, The Dow Chemical Company (“TDCC”). Particularly, Nova sought information related to TDCC’s US Gulf Coast facilities. The Court outlined that Nova was seeking documents from a non-party to the Action but failed to bring the necessary Application pursuant to Rule 5.13, which allows the Court to order a non-party to an Action to produce documents. The Court also held that Dow did not carry on business in the United States, had no way to transport its product to the United States and therefore, the documents were not relevant and material to the Action.

Nova also sought the production of a spreadsheet that Dow claimed privilege over. Dow produced the original version of the spreadsheet, but claimed privilege over subsequent versions that had been created for the dominant purpose of litigation. The Court noted that no guiding authority was located on the changing nature of electronic spreadsheets and the implications for a claim of litigation privilege. The Court held that subsequent versions of the spreadsheet, although incorporating data from earlier iterations, were different documents and therefore privileged.

In addition, Nova sought answers to Interrogatories that required the compilation of information into charts. The Court held that it did not have the jurisdiction to order a party to make new documents, but only to produce what already existed. The Court dismissed Nova’s Application in its entirety.

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