DATE: 20020219
DOCKET: C37211
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE AND SIMMONS JJ.A.
B E T W E E N:
OPTIMIGHT COMMUNICATIONS, INC.
Barbara A. McIsaac, Q.C. for the appellant
Applicant (Respondent on Appeal)
- and -
John P. Koch for the respondent
INNOVANCE, INC., PETER ALLEN, ALAN SOLHEIM and DAVID NICHOLSON
Respondents (Appellants on Appeal)
Heard: January 11, 2002
On appeal from a judgment of Justice Roydon Kealey dated October 25, 2001
SIMMONS J.A.:
[1] The appellants appeal from a judgment of Kealey J. dated October 25, 2001 giving effect to a Letter of Request issued on the application of OptiMight Communications, Inc. ("OptiMight"), on April 20, 2001, by Magistrate Judge Seeborg of the United States District Court for the Northern District of California. The Letter of Request seeks the assistance of Ontario courts in enforcing an order for production of 34 categories of documents by Innovance, Inc.[^1], as well as oral discovery on 19 specific topics of three named senior officers of the corporation and one unnamed corporate representative.
[2] OptiMight is the plaintiff in the California proceeding. It claims that a former employee, Dr. Lucas Hsu "misappropriated highly confidential and proprietary trade secrets" and then left its employ after only three months to take up a position at Innovance, Inc.[^2] OptiMight advances claims in the litigation against Dr. Hsu and ten unnamed parties. Innovance, Inc. is not, however, a party to the California action.
[3] Relying on R. v. Zingre, 1981 32 (SCC), [1981] 2 S.C.R. 392, the motions judge allowed the application for enforcement of the Letter of Request, finding that "[t]he international common interest of sovereign states require each to give effect to the other's laws and judicial decisions unless there be sound reasons not to do so". He also held that no "restriction, limitation or adjustment is required [to the terms of the Letter of Request] given the existence of the joint defence agreement between Innovance and Hsu".
[4] The appellants claim that the Letter of Request is overly broad, unduly burdensome, and that it permits irrelevant discovery amounting to a "fishing expedition", which extends to Innovance, Inc.'s trade secrets. They submit that the scope of the Letter of Request should be narrowed; that oral discovery should be limited to only one corporate representative; and that Innovance, Inc. or its counsel, should be entitled to disclosure of the trade secrets allegedly misappropriated.
[5] I would allow the appeal in part by limiting the scope of production and discovery permitted by the Letter of Request to categories of documents and topics for deposition not objected to before us. I would also order that this limitation shall lapse upon OptiMight disclosing to counsel for the appellants particulars of the trade secrets it has disclosed to Dr. Hsu on the terms set out at the conclusion of this endorsement.
Background
i) The Parties
[6] OptiMight is a fibre optics company engaged in developing technologies for long-distance transmission of optical signals over fibre optic cables. It claims that it can increase the distance an optical signal can travel without degradation from 500 kilometres to 4,000 kilometres through use of its proprietary technology.
[7] Significantly, OptiMight claims that frequency modulation of optical signals is an innovative aspect of the technology it uses, and that other technologies use amplitude modulation only. OptiMight's trade secrets relate to: the frequency modulation pattern it has identified as optimal (referred to as full spectrum wave division multiplexing in the Letter of Request) in permitting long distance transmission of optical signals; the device that generates that frequency modulation pattern; and the conditions that permit the device to generate the necessary frequency modulation pattern.
[8] OptiMight hired Dr. Hsu on May 1, 2000. It alleges that he worked in a high level position and had access to its proprietary technology. It also alleges that Dr. Hsu resigned on August 2, 2000, without prior notice; and that he commenced working for Innovance, Inc. on August 3, 2000 as Vice-president of Technology, in what it describes as "suspicious circumstances":
a) engaging in discussions with a principal of Innovance prior to his departure from OptiMight;
b) downloading files pertaining to OptiMight's trade secrets from the OptiMight server to his OptiMight desktop computer on the eve of his departure from OptiMight;
c) copying OptiMight files stored on his personal laptop computer to his Innovance laptop computer; and
d) commencing employment with Innovance, Inc. just one day after his departure from OptiMight.
[9] Finally, OptiMight asserts that Innovance, Inc. is also "developing ultra-long reach transmission systems", and that its technology "would provide a substantial benefit to such a company".
[10] Innovance, Inc. concedes that it is a direct competitor of OptiMight.
ii) Chronology of the California Litigation
[11] On October 10, 2000 Judge Whyte of the United States District Court for the Northern District of California made an order in the California action denying, on a without prejudice basis, requests by OptiMight for a Letter of Request, a temporary injunction and a temporary restraining order against Dr. Hsu; but permitting limited, specified, expedited discovery, following filing under seal of a more specific identification of the trade secrets in issue.
[12] On February 23, 2001 Magistrate Judge Edward Infante of the United States District Court Northern District of San Jose Division, California issued a protective order in the California action, which applies to production and discovery between both parties and non-parties. The order provides that highly confidential documents and information produced in the litigation may be designated so that only the court (under seal), outside counsel and independent experts will be given access, subject to further order of the court.
[13] On April 20, 2001 Magistrate Judge Seeborg issued an order dated April 20, 2001 authorizing issuance of the Letter of Request. It included the following findings:
[OptiMight] contends that its former employee Dr. Lucas Hsu absconded with trade secrets [footnote omitted] belonging to OptiMight, and that Dr. Hsu has transferred these trade secrets to a new fiber optic company, Innovance Networks, of Ottawa, Canada. OptiMight has sued Dr. Hsu and unnamed Does ... OptiMight has not made Innovance Networks a defendant.
OptiMight investigated the circumstances following Dr. Hsu's departure, and found indications that on his last full day at OptiMight, Dr. Hsu had copied files containing information pertaining to OptiMight's trade secrets ... While denying that he expropriated trade secrets or breached his confidentiality agreement with OptiMight ... Dr. Hsu does not dispute that he copied some OptiMight files to his Innovance laptop computer .
On October 10, 2000, Judge Whyte granted OptiMight's request for expedited discovery, and expressly authorized discovery into the nature of "Innovance's business." ... Based upon a request from Dr. Hsu to hasten discovery, Judge Whyte directed the parties to attempt to complete fact discovery by April 27, 2001. ... Thus, while it might have been more efficient for the plaintiff to finish reviewing Hsu's responses to OptiMight's ... requests [and] interrogatories once received, [footnote omitted] it cannot be said that the proposed Letter of Request is premature.
Dr. Hsu also argues that the proposed Letter of Request is premature in that OptiMight's identification of trade secrets was inadequate. [footnote omitted] However, Dr. Hsu has not moved to compel OptiMight to refine its identification of trade secrets, nor sought to meet and confer with OptiMight counsel on this issue. Dr. Hsu has also not specified the particular manner in which OptiMight's identification of trade secrets are inadequate and insufficient to allow the defendant and the court to determine relevance. [footnote omitted] The court cannot therefore exclude this discovery as premature on this record.
This is not a case, however, where a discovery burden is imposed on an uninvolved nonparty. Dr. Hsu is himself a Vice-President of Innovance, and he has not challenged OptiMight's characterization of him as an Innovance co-founder. Innovance is indisputably an interested party in many of the events of central importance in this matter. [emphasis added]
[14] OptiMight issued a subpoena out of the United States District Court for the District of Delaware requiring Innovance, Inc. to produce documents alleged to be relevant to the California litigation. The categories of documents to be produced under the subpoena are virtually identical to the categories set out in the Letter of Request.
[15] On June 28, 2001 Chief Judge Robinson of the United States District Court for the District of Delaware narrowed the scope of production required pursuant to the Delaware subpoena "as much of the requested discovery exceeds the scope of Judge Whyte's order."
[16] Magistrate Judge Seeborg granted a motion for clarification of his April 20, 2001 order on August 15, 2001. The August 15, 2001 order provides, in part:
As a matter of United States law, neither the Letter of Request nor the related Order of this Court is "in violation" of the scope of discovery of Innovance authorized by United States District Court Judge Ronald M. Whyte. On October 10, 2000, Judge Whyte issued an order granting both OptiMight and Dr. Lucas Hsu the right to conduct limited discovery prior to the January 19, 2001, Initial Case Management Conference. By action of law and the Federal Rules of Civil Procedure, the limitations to discovery imposed by Judge Whyte have lapsed.
The Order and Letter of Request were signed on April 20, 2001. Neither party appealed the Order and Letter of Request, and the time for appeal has expired. Accordingly, as a matter of United States law, the Order of April 20, 2001, and the related Letter of Request, constitute valid, binding and final orders of the United States /District Court for the Northern District of California, and alone define the scope of the discovery-related judicial assistance sought from the judicial authorities in Canada.
[17] On September 12, 2001 Magistrate Judge Seeborg made an order granting in part and denying in part Dr. Hsu's motion to compel OptiMight to further identify the trade secrets it alleges were misappropriated.
Positions of the Parties
[18] Although it does not directly allege that Dr. Hsu transferred trade secrets to Innovance, Inc., OptiMight seeks enforcement of a broad right of production and discovery in order that it can explore the extent to which Dr. Hsu has transferred trade secrets to Innovance, Inc., with or without that company's knowledge.
[19] OptiMight contends that the motions judge in Ontario exercised his discretion properly in declining to limit the scope of the Letter of Request and that further, there is no basis in United States law for the court to order disclosure of trade secrets to a non-party.
[20] In a declaration made October 9, 2000 Dr. Hsu claims that he did not misappropriate confidential information and that, in any event, the concepts and ideas generally described in OptiMight's materials as constituting its trade secrets are well known throughout the fibre optics industry.
[21] As already noted, the appellants claim that the Letter of Request is overly broad, unduly burdensome, and that it permits irrelevant discovery. They acknowledge that Innovance, Inc entered into a Joint Defence Agreement with Dr. Hsu by letter dated December 6, 2000. They maintain however that that agreement does not permit Dr. Hsu or his counsel to disclose the particulars of OptiMight's trade secrets to Innovance, Inc. or its lawyers, nor to direct Innovance, Inc.'s position in relation to the litigation.
Analysis
[22] I agree with the motions judge's statement of the principle of comity, and that the principle is the threshold consideration in determining whether to enforce a Letter Of Request. There are, however, other, more specific factors that may impact on the assessment. In Re Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. (1986), 1986 2827 (ON SC), 56 O.R. (2d) 722 at 732 (H.C.J.) Osborne J. provided a non-exhaustive list of criteria for consideration in determining whether to enforce a Letter of Request:
Before an order giving effect to letters rogatory will be made, the evidence (including the letters rogatory) must establish that:
the evidence sought is relevant;
the evidence sought is necessary for trial and will be adduced at trial if admissible;
the evidence is not otherwise obtainable;
the order sought is not contrary to public policy;
the documents sought are identified with reasonable specificity;
the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.
[23] Subsequent courts have considered these same factors, in whole or in part, when determining whether to narrow the scope of documentary production required under a Letter of Request: Acton v. Merle Norman Cosmetics, Inc., [1992] O.J. No. 43 (C.A.), Pecarsky v. Lipton Wiseman Altbaum & Partners (1999), 96O.T.C. 178 (S.C.J.).
[24] In support of their submission that the scope of the Letter of Request is overbroad the appellants point, in particular, to categories 3 (items (a) to (d)), 6 and 26 of the permitted categories of documentary discovery. Reference to one sub-category illustrates the issue:
CATEGORY 6
All documents relating to your research, testing, development, product planning or competitive position relating to a) the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances; ... [emphasis added]
[25] The concern with the emphasized language is that it exposes Innovance, Inc. to a possible requirement to produce its own trade secrets without a mechanism for ensuring that any trade secrets it is required to produce are truly germane to the California litigation. However, OptiMight asserts that if Innovance, Inc. is using frequency modulated optical pulses for long distance transmission of optical signals, that is both a sufficient trigger to require production of all information that Innovance, Inc. possesses concerning that technology and a sufficient limit on the scope of production.
[26] The presenting issue here is very much, which company "should go first" in revealing its trade secrets, albeit subject to the disclosure restrictions set out in the protection order. I am mindful that Innovance, Inc. has chosen not to reveal whether it uses frequency modulated optical pulse technology to facilitate long distance transmission of optical signals, and not to assist with specifics of any technical parameters that would better define the scope of discovery. Nevertheless, it is also significant, in my view, that Dr. Hsu's motion for further particulars of OptiMight's trade secrets was allowed only after the order authorizing the Letter of Request was made.
[27] The transcript of the hearing held on April 11, 2001 makes it clear that Magistrate Judge Seeborg recognized there is a challenge involved in attempting to fashion an order requiring disclosure of all relevant information indicating whether Innovance, Inc. has used OptiMight's technology, without permitting a "fishing expedition". He specifically noted the risk inherent in the language "the use of any other optical source technology for use in transmitting optical signals" as potentially authorizing "a fishing expedition". Nonetheless, based on his assessment of the competing interests, he opted for an order that is broader rather than narrower in its scope, to avoid the possibility that relevant information would not be captured. Further, Magistrate Judge Seeborg made a specific finding that because Dr. Hsu had not moved for particulars of OptiMight's trade secrets the motion for a Letter of Request was not premature.
[28] The competing interests relating to enforcement of the Letter of Request in Ontario are somewhat different. Relevance of the evidence sought is a factor recognized as being significant to that determination. Although Innovance, Inc. is not an uninvolved entity, unlike Dr. Hsu, it is not a party to the California action. Dr. Hsu's failure to seek particulars of OptiMight's trade secrets prior to April 20, 2001 does not bar Innovance Inc.'s entitlement to point to the September 12, 2001 order for particulars as having a bearing on the scope of production and discovery that should be enforced.
[29] In my view, there is merit to the contention that the scope of production and discovery imposed on Innovance, Inc. is overly broad when neither the court imposing the burden on the foreign non-party, nor the foreign non-party itself, have access to the same particulars of the allegedly misappropriated trade secrets as the resident party to assist them in assessing the relevance of the information requested.
[30] A review of the Joint Defence Agreement does not in any way alleviate this concern. I accept the appellants' submission that it does not authorize Dr. Hsu either to disclose particulars of OptiMight's trade secrets to Innovance, Inc. or to direct Innovance, Inc.'s response to the Letter of Request.
[31] Although the protection order preserves, to a significant degree, Innovance, Inc.'s privacy interest in its trade secrets, it does not relieve it from the prospect of irrelevant, overly broad, and unduly burdensome production and discovery.
[32] In my view, in the particular circumstances of this case, the motions judge erred in endorsing the Letter of Request without requiring production to legal counsel for the appellants, of the same particulars of the trade secrets disclosed to Dr. Hsu, to provide the appellants with a means of determining what is or is not relevant to the respondent's claim. The appellants should however comply in any event with those aspects of the Letter of Request to which they did not object before us.
[33] I find no valid objection to the requirement that four persons be produced for oral discovery, as that appears consistent with California practice, provided the scope of the discovery is limited by the disclosure referred to above.
[34] I would accordingly allow the appeal in part by limiting the scope of production and discovery to the categories of documents and topics for deposition not objected to before us by the appellants, which are listed in Schedule "A". This limitation shall cease to apply 21 days following disclosure of the particulars to legal counsel for the appellants of the trade secrets disclosed to Dr. Hsu. Any such disclosure shall be dealt with in accordance with paragraph 8 of the Protective Order dated February 23, 2001 made in the California action, and as if counsel for the appellants were outside counsel. In addition to other objections already authorized by the terms of the judgment under appeal, production and discovery required shall be subject to the right of the appellants to object to any aspect thereof based on relevance. Any objections raised may be adjudicated from time to time in accordance with paragraph 1(g) of the Judgment dated October 25, 2001. Counsel for Innovance may advise the court in writing of any errors or omissions in Schedule "A" within seven days following the release of this judgment. Counsel for OptiMight may respond in writing within 7 days following any objection by Innovance.
[35] Although we note some inconsistency in how the Ontario corporate entity has been identified, it appears that this matter has been litigated on the basis that it is the corporation that is subject to the Letter of Request.
[36] Costs of the appeal and of the motion for a stay of the Judgment dated October 25, 2001 are to the appellants. If counsel are unable to agree on the quantum of costs counsel for the appellants may file written submissions within seven days following the release of this judgment and counsel for OptiMight may respond within seven days thereafter.
Released: February 19, 2002 "MJM"
"J. Simmons J.A."
"I agree M. J. Moldaver J.A."
"I agree Robert J. Sharpe J.A."
SCHEDULE "A"
CATEGORIES OF DOCUMENTS FOR PRODUCTION
CATEGORY NO. 1:
All documents relating to OptiMight.
CATEGORY NO. 2:
All documents relating to communications between you and Hsu regarding Hsu's recruitment and hire, the terms of Hsu's retention and the general nature of Hsu's employment and job duties at Innovance, if any, in your possession, custody or control.
CATEGORY NO. 5: (Limited in Time to the Period August 2000 through October 2000)
A bit-for-bit copy (in machine readable form) of all electronic files created or stored by Hsu on any of your computers or any of your computer storage media relating to (a) research concerning the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances; (b) the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances; (c) the simulation of a system using frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances; (d) methods, devices, and conditions for propagating and maintaining frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances, or (e) OptiMight.
CATEGORY NO. 7: (Limited in time to the Period August 2000 through to October 2000)
All documents Hsu provided to you relating to transmitting optical signals over long distances, business plans relating to transmitting optical signals over long distances, and analyses of companies developing, testing, selling, licensing and/or using products, technologies or services for transmitting optical signals over long distances.
CATEGORY NO. 9:
All documents relating to LightWorks.
CATEGORY NO. 14:
All documents relating to your recruitment and hiring of Hsu, including, without limitation, any telephone records, travel records, expense reports, reservations, ticketing information, resumés, job applications, offer letters, business plans, product roadmaps and presentations.
CATEGORY NO. 16:
All documents related to agreements between you and Hsu, including, without limitation, employment agreements, confidentiality agreements, shareholder agreements, stock option agreements and drafts thereof.
CATEGORY NO. 19:
All documents relating to Hsu's past, present, or future, job titles and responsibilities at Innovance and any changes made to such titles and responsibilities.
CATEGORY NO. 22:
All documents related to any actions taken by you or Hsu to prevent you and/or Hsu from using or disclosing, directly, indirectly, intentionally or otherwise, any OptiMight Confidential Information.
CATEGORY NO. 23:
All documents related to any use or disclosure by you or Hsu of any OptiMight Confidential Information, except for the benefit of OpitMight.
CATEGORY NO. 27:
All documents relating to Innovance's procedures and policies for protecting the confidentiality of trade secret information and other intellectual property belonging to the former employers of Innovance's employees.
CATEGORY NO. 28:
All documents relating to communications between you and Hsu on or before August 2, 2000, including without limitation, e-mail messages and telephone records.
CATEGORY NO. 29:
All documents relating to communications between you and Azure Capital or Paul Ferris relating to Hsu and/or LightWorks, including without limitation, e-mail messages but excepting telephone records.
CATEGORY NO. 30:
All documents relating to any meeting between you and Hsu on or before August 2, 2000, including without limitation, the July 13, 2000, meeting between you and Hsu referred to in Paragraph 6 of the Declaration of Peter Allen, dated October 9, 2000.
CATEGORY NO. 33:
All documents relating to the "internal inquiries" referenced in Paragraphs 8 and 9 of the Declaration of Peter Allen, dated October 9, 2000, including, without limitation, any reports, statements, summaries, conclusions, findings, recommendations, proposals or resolutions.
CATEGORY NO. 34:
Documents sufficient to identify any "Prior Inventions" as that term is used in Paragraph 5(a) of the Employment, Confidential Information and Invention Assignment Agreement between you and Hsu attached as Exhibit A to the Declaration of Peter Allen, dated October 9, 2000.
TOPICS FOR ORAL DEPOSITION
- Communications with Lucas Hsu relating to
(a) Optimight's trade secrets relating to research concerning the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances;
(b) Optimight's trade secrets relating to the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances;
(c) Optimight's trade secrets relating to the simulation of a system using frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances; or
(d) Optimight's trade secrets relating to methods, devices, and conditions for propagating and maintaining frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances;
(e) OptiMight Communications, Inc.'s ("OptiMight") operations;
(f) OptiMight's technological or competitive position
(g) OptiMight's present, future, and potential products and technology, or products and technology under development including without limitation products and technology relating to the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances;
(h) OptiMight's development or testing of any current, future, or potential product or technology including without limitation, products and technology relating to the use of frequency modulated optical pulses to facilitate either full spectrum wave division multiplexing or any other optical source technology for use in transmitting optical signals over long distances;
(i) OptiMight's business information, including, but not limited to, marketing information, financial information, sales information, product roadmaps, or development strategies; and
(j) OptiMight's current, prospective, or former shareholders, employees, independent contractors, customers, vendors, or suppliers.
Innovance's efforts to recruit and hire Lucas Hsu, including without limitation, meetings and communications between Innovance's officers, directors and employees and Lucas Hsu before Hsu was hired.
Innovance's employment relationship with Lucas Hsu, including, without limitation, any agreements, oral or written, between Innovance and Lucas Hsu, any conditions placed on Lucas Hsu's employment, his job description, and his performance.
Innovance's potential business dealings with Lucas Hsu, including, without limitation, the circumstances of the potential merger or joint venture relationship between LightWorks Technologies, Inc., and Innovance.
Lucas Hsu's activities while employed by Innovance, including without limitation, his present and future job responsibilities, his recruiting activities, the projects he has worked on or is currently working on, the employees under his supervision, and the nature of the work he has done since beginning employment with Innovance and the work that he will do for Innovance in the future.
Innovance's policies and procedures for preventing the unauthorized use or disclosure of the confidential or proprietary information and other intellectual property belonging to the former employers of Innovance's employees.
Innovance's investigation and/or internal inquiries into the allegations, claims and defenses asserted in the Action.
The contents of the hard drive of the laptop computer which Innovance issued to Hsu, as it existed at the time it was provided to Hsu's attorneys and their experts, as stated in Paragraph 9 of the Declaration of Peter Allen, dated October 9, 2000, filed in the Action.
Communications between Innovance and Azure Capital or Paul Ferris relating to Hsu and/or LightWorks.
The location of documents in Innovance's custody or control, including without limitation, documents prepared by Hsu, documents received by any Innovance employee from Hsu, Hsu's personnel file, documents on the computer (or computers) Hsu uses in connection with his work for Innovance, and documents prepared by or obtained from Hsu or Innovance's computer system.
The location, search for, and production of documents produced in accordance with the letter of request and as directed by this court.
The authenticity and genuineness of the documents produced in accordance with the Order issued in response to this Letter of Request.
[^1]: OptiMight alleges that Innovance, Inc. is an Ontario corporation with an Ottawa address. However, the corporate searches filed by OptiMight appear to indicate that Innovance, Inc. is a Delaware corporation, incorporated on April 25, 2000, and that Innovance Inc., incorporated on May 4, 2000 is the Ontario corporation. In any event, the appellants acknowledge that Innovance Inc. is a wholly owned subsidiary of the Delaware corporation, and that the Innovance companies are competitors to OptiMight.
[^2]: The appellants do not contest that Dr. Hsu is a named co-founder and Vice-President of Innovance, Inc. Counsel appear, however, to advance conflicting positions concerning which company employed Dr. Hsu. Counsel for OptiMight claims it was the Ontario corporation, albeit possibly misnamed, whereas counsel for Innovance claims it was the Delaware corporation. I note that the material filed on behalf of Dr. Hsu, which includes a declaration from the president of Innovance, Inc., does not differentiate clearly between the two corporations.
In a declaration made on October 9, 2000 Dr. Hsu says: "I am currently employed by Innovance, who has offices in New Jersey and Ottawa, Canada. ... As part of the offer to join Innovance, I was named a co-founder. ...My main current task at Innovance is to recruit engineers for Innovance and to set up the New Jersey office for the company."
Peter Allen, a founder, president, and chief executive officer of Innovance, Inc. deposes in a declaration made October 10, 2000, that: "Innovance [earlier defined as Innovance, Inc.] was incorporated in April 2000", and has offices in Ottawa, Canada and New Jersey." He also says: "Dr. Hsu accepted Innovance's offer of employment, and commenced employment ... on or about August 3, 2000, as Vice-president of Technology..."