Date: 20010405
Docket: T-28-99
Neutral citation: 2001 FCT 299
BETWEEN:
MICROSOFT CORPORATION
Plaintiff
-and-
1222010 ONTARIO INC. carrying on business
as AKRAN NETWORKS and RAMAN AGARWAL
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks answers to questions refused on discovery. The questions were addressed by both parties in groups and generally. At the end of the day I indicated I would reserve a decision on most of the questions to be able to look at the individual question to decide whether they were sufficiently limited to relevant issues and not in the nature of "fishing".
[2] The action deals with alleged copyright infringement by copying the plaintiff's copyright material into computers which were then sold.
[3] The defendants are an individual who is alleged to be responsible for the actions of a company trading as Akran Networks ("Networks") and the company. On his discovery personally and as representative of Networks it was revealed that many of the computers containing the allegedly infringing programs were originally the property of another company now in bankruptcy which traded under the style of Akran Systems ("Systems"). When being discovered the individual defendant stated that the computers in question had been sold by Networks on behalf of Systems. He also stated that the computers when obtained did not have software, but must have been loaded with software by employees. Computers of Systems sold for it by Networks were described as being sold at a "Fire sale". No explanation was given as to how Networks was in position to sell the assets of Systems and there is some question as to the title to the computers and to when the programs were put into the computers. I determined at the hearing that the questions asked if limited to computers in the fire sale would be relevant, but if related to all computers would be too broad. I reserved my decision on those questions in order to read the individual questions.
[4] Question 452 being specifically with request to the disposition of monies from fire sale items is ordered answered.
[5] Questions 665, 734 and 477 are ordered answered.
[6] Certain of the computers sold at the fire sale were computers which were used by Systems in its business. In my view, questions with regard to those computers are relevant and question 807 is ordered answered.
[7] The question at page 180 relates to assets acquired by Networks from Systems other than computer systems. That patently is not a question concerning the fire sale computer systems and does not have to be answered as it does not involve computers or programs the subject at issue in the action. The question does not have to be answered.
[8] Question 810 seeking invoices of Systems from its suppliers with respect to items that are part of a computer system. Question 810 is directly related to a relevant computer system and shall be answered.
[9] Question 107 raises the matter of a contract between the defendants. Apparently that contract involves a person, not a party, who has indicated that the individual plaintiff will lose his job if the information is revealed. The information appears to be most relevant to the matters in issue and it is therefore ordered that the contract mentioned in question 107 shall be produced. In the initial instance the identity of the non party may be concealed. (This order is without prejudice to the plaintiff's right to move for the identity of the non party if it appears to the Court relevant).
[10] The questions at page 179 were summarized as "provide the identity of any witnesses whether intending to rely on the statements at trial or not". The questions in the transcript sought the identity of witnesses whose "will say statements" had been obtained whether it was intended to call them or not.
[11] "Will say" statements are not contemplated by the Rules to be part of the procedure in this Court. Where it is probable that a party will know of someone who might be a witness to a particular fact, Rule 240(b) indicates the name and address of that person is to be provided. It is not intended that a general question of the type asked here should be ordered. The question at page 179 will not be ordered answered.
[12] The defendant having indicated that a computer would possibly have been loaded with plaintiff's software by an employee other than a technical person was unable to tell the date of manufacture of one of the computers in question. It follows that any employee might be a witness as to loading. The plaintiff asked for the names and addresses and dates of employment of all employees of Systems. Such employees being potential witnesses the names should be given. Question 490 is ordered answered.
[13] The defendant having indicated that technical people as part of their job loaded software on computers sold by Systems. Such people are possible witnesses. Question 485 is ordered answered.
[14] Questions 528-531 seek the names of employees of Systems who ever worked for Networks. The answer to such a question would be irrelevant and does not have to be answered.
[15] Question 677 seek the names of competitors who have complained of the defendant's pricing or copying practices. Such complainants might be in a position to give evidence of further instances of the type of act described in the amended statement of claim. The defendant would have me classify such a question as the commencement of a fishing expedition. A fishing expedition is one in which a party seeks evidence of facts of which it had no previous knowledge. Here the plaintiff has knowledge of certain instances of selling of computers with the plaintiff's unlicensed software installed on their hardware.
[16] It is my view that seeking further instances of that type of infringement is not a fishing expedition. Seeking other types of infringement would be fishing. It is my view that question 677 is too broad and seeks evidence way beyond other instances of the same type of infringement. It is therefore the first step in a fishing expedition and does not have to be answered.
[17] Question 810 seeking further invoices was not pursued a second time and will not be ordered answered a second time.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
April 5, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-28-99
STYLE OF CAUSE: MICROSOFT CORPORATION
Plaintiff
-and-
1222010 ONTARIO INC. carrying on
business as AKRAN NETWORKS and
RAMAN AGARWAL
Defendants
DATE OF HEARING: MONDAY, APRIL 2, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: THURSDAY, APRIL 5, 2001
APPEARANCES BY:
Mr. John Cotter
For the Plaintiff
Mr. Leonard Max Q.C.
For the Defendants
SOLICITORS OF RECORD: Leonard Max
Barrister & Solicitor
201-357 Preston Street
Ottawa, Ontario
K1S 4M8
For the Plaintiff
COTTER, OSLER, HOSKIN, HARCOURT L.L.P.
P.O. Box 50
First Canadian Place
Toronto, Ontario
M5X 1B8
For the Defendants
FEDERAL COURT OF CANADA
Date: 20010405
Docket: T-28-99
Between:
MICROSOFT CORPORATION
Plaintiff
-and-
1222010 ONTARIO INC. carrying on
business as AKRAN NETWORKS and
RAMAN AGARWAL
Defendants
REASONS FOR ORDER AND ORDER