Marcus Klee

The defendants, Google Canada Corporation et al., brought a motion for leave to file and rely upon reply expert reports from Dr. Parkes and Dr. Tadelis.

Google argued the reply reports were necessitated by new evidence in the plaintiff's responding expert reports.

The Court dismissed the motion, finding that the proposed reply evidence was not proper reply evidence as it was largely confirmatory, sought to address disagreements between experts, or raised matters that should have been anticipated.

The Court also declined to exercise its discretion to admit the evidence, citing prejudice to the plaintiff less than a week before trial.

In an action for patent infringement regarding internet search engine advertising systems, the plaintiff brought a motion under Rule 227 of the Federal Courts Rules seeking an order requiring the defendants to produce a further and better affidavit of documents or to allow cross-examination on their affidavit of documents.

The plaintiff argued that the defendants' amended defence and expert reports introduced new theories of non-infringing alternatives, suggesting further undisclosed documents likely existed.

The Court found that the plaintiff's arguments were largely speculative and failed to meet the burden of showing that further documents likely existed with convincing evidence.

The motion was dismissed, but the defendants were ordered to serve a current sworn or affirmed affidavit of documents to reflect additional productions made since their original affidavit.