Canadian Lawyer InHouse

By Marie-Andrée Vermette, Partner, WeirFoulds LLP 1 Company X receives some compelling evidence of corporate espionage on the part of Company Y, one of its main competitors, from an anonymous source. The evidence received includes a series of emails that were sent from Hotmail email accounts. The senders' email addresses are composed of random letters and numbers and do not reveal the real identities of the senders. Although Company X is satisfied based on the evidence received that the authors of the emails were acting for the benefit of Company Y, it would like to know their identities in order to sue them personally in addition to suing Company Y. Company X is advised by its information technology manager that in order to identify the authors of the emails, Company X should seek to obtain the Internet protocol addresses associated with the Hotmail addresses in question. What pre-action discovery remedy could assist Company X in obtaining the Internet protocol addresses from Hotmail? a) Mareva injunction. b) Mary Carter Agreement. c) Anton Piller order. d) Norwich order. Common procedural tools for complex After completing its investigation, Company X decides to commence an action against Company Y and two of its officers, David Smith and Claire Jones, for $75 million for breach of confidence, intentional interference with economic relations, conspiracy and other causes of action. However, Company X is concerned that the defendants will destroy evidence of their wrongful conduct once they become aware of Company X's civil action. What should Company X do? a) Seek a Mareva injunction. b) Seek to enter into a Mary Carter Agreement with Company Y. c) Seek an Anton Piller order. d) Seek an interlocutory injunction. 2 litigation There can be complex litigation about almost anything. This is because complex litigation is not limited to a particular area of substantive law. Despite the variety of topics, parties involved in complex litigation often face similar challenges, and can often use similar procedural tools to deal with such challenges. In this quiz, we review some of these procedural challenges and tools in the context of a claim for corporate espionage by Company X against Company Y. In response to Company X's Statement of Claim, Company Y makes very broad allegations in its Statement of Defence regarding the conduct of Company X's business and alleges that any damages incurred by Company X are the result of the mismanagement of its own business. Company X is concerned that, in order to respond to the broad allegations contained in the Statement of Defence, it will have to produce commercially sensitive documents regarding the management of its business. As a result, Company X brings a motion for a confidentiality order supported by a very 3 short affidavit stating that Company X would be prejudiced if it had to produce commercially sensitive documents to a competitor without any restrictions and/or if such documents were eventually made public in the course of the litigation. What are Company X's chances to obtain a confidentiality order based on this evidence? a) Very good. b) Not very good. In order to prepare its affidavit of documents, Company X collects tens of thousands of potentially relevant documents in both electronic and paper formats. After de-duplication and other culling methodologies are applied to the collection of documents, the remaining documents are reviewed by lawyers for both relevance and privilege. Quality control checks are also performed using keywords and advanced search tools. Despite this review process, Company X is concerned that some of its privileged documents could be inadvertently produced given the volume of documents involved. Although a review of the law on inadvertent production alleviates Company X's concerns to some extent, it still would like to obtain additional protection against waiver of privilege. What could Company X do? 4 a) Negotiate a Mary Carter agreement with the defendants. b) Negotiate a clawback agreement with the defendants. c) Negotiate a tolling agreement with the defendants. d) Negotiate a common interest privilege agreement with the defendants. CANADIANLAWYERMAG.COM/INHOUSE OCTOBER/NOVEMBER 2012 • 17

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