Winston Kenneth Harold Thomas Fogarty

The applicants and a related party obtained orders enforcing letters of request from a Florida court to compel the respondent to produce documents from electronic devices held by an independent third party (PWC).

The US court ordered the respondent to produce non-privileged documents, but on the deadline, his US counsel moved to withdraw, and the respondent unilaterally instructed PWC to revoke his US counsel's access to the database.

The court directed PWC to restore the US counsel's access, finding that the respondent could not unilaterally frustrate the discovery process by firing his lawyer.

This endorsement addresses a dispute over document production costs in Ontario, arising from letters of request issued by a Florida court to compel the respondent, Mr. Smith, to produce documents and attend examination in aid of US litigation.

The applicants (Perlmutters and Mr. Peerenboom) sought to avoid or shift the costs of Mr. Smith's counsel reviewing documents for relevancy and privilege, arguing Mr. Smith was an interested party and not impecunious.

The court affirmed its prior ruling that Mr. Smith's counsel must conduct the review and that the applicants are liable for these costs on a full indemnity basis, ordering them to pre-pay $200,000 for continued document production.

The parties attended a case conference to address the implementation of a prior order enforcing Letters of Request from a Florida court.

The court clarified that the prior order only applies to examinations conducted in Ontario, not to depositions held in Florida.

The court also ruled that the respondent's Ontario counsel is entitled to review documents generated by keyword searches for relevancy prior to production, provided they produce a log of all hits indicating their relevancy determinations.

This endorsement addresses the issue of costs following an application to enforce two Letters of Request from a Florida court, directed at David Smith.

The underlying dispute involved allegations of a hate mail campaign orchestrated by Isaac Perlmutter against Harold Peerenboom, with David Smith allegedly involved.

All parties (Isaac and Laura Perlmutter, Harold Peerenboom, and David Smith) sought costs for the Canadian application.

The court found it impossible to meaningfully decide the issue of costs without knowing the ultimate results of the two related Florida actions, as the success or failure of the allegations would significantly impact the entitlement to costs.

Given the ongoing litigation and the direct interest of all parties in the outcome, the court ruled that each party should bear its own costs.