MARICAL INC et al v. COOKE AQUACULTURE INC et al
ORDER granting 219 Motion for Issuance of Letter Rogatory. By MAGISTRATE JUDGE JOHN C. NIVISON. (Attachments: # 1 Exhibit A Letter Rogatory) (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARICAL INC., et al.,
COOKE AQUACULTURE INC.,
LETTER ROGATORY TO
THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR, CANADA
The United States District Court for the District of Maine presents its compliments
to the Supreme Court of Newfoundland and Labrador, Canada, and requests international
judicial assistance to obtain evidence to be used in a civil proceeding before this Court in
the above captioned matter. The United States District Court for the District of Maine is a
competent court of law and equity which properly has jurisdiction over this proceeding and
is authorized to issue letters rogatory pursuant to, inter alia, 28 U.S.C. § 1781(b)(2) and
Rule 28(b) of the Federal Rules of Civil Procedure.
In this action, Plaintiffs and Counter Claim Defendants Marical Inc., Europharma
AS, and Europharma Inc. Canada (“Plaintiffs”), allege that Defendants and Counter Claim
Plaintiffs Cooke Aquaculture Inc., Cooke Aquaculture USA Inc., True North Salmon Co.
Ltd., True North Salmon US Inc., True North Sales US Inc., and Salmones Cupquelan SA,
Co. (“Defendants”), produce and import salmon raised by methods that infringe United
States Patent No. 6,463,883, United States Patent No. 6,475,792, United States Patent No.
6,481,379, and United States Patent No. 6,564,747, which patents-in-suit teach methods
for raising pre-adult anadromous fish. (Complaint, ECF No. 1.) By way of counterclaim,
Defendants seek a declaratory judgment of invalidity and non-infringement. (Answer and
Counterclaims, ECF No. 16.)
Plaintiffs assert that the cause in question cannot be justly resolved without the
opportunity to depose Ms. Jean Willcott, P.O. Box 237, Milltown, NL, Canada. Upon
review of Plaintiffs’ request for issuance of letter rogatory, this Court has concluded that
the just resolution of the claims and counterclaims in this action calls for Ms. Willcott’s
deposition, as her testimony is likely to be probative of material facts relevant to Plaintiffs’
claims of patent infringement and Defendants’ counterclaims of patent invalidity.
Accordingly, this Court requests the assistance of the Supreme Court of Newfoundland and
Labrador to secure production of the evidence outlined herein.
This request is made with the understanding that it will in no way require any person
to commit any offense, or to undergo a broader form of inquiry than he or she would if the
litigation were conducted in a Canadian court. The requesting Court is satisfied that the
evidence sought to be obtained through this request is relevant and necessary and cannot
reasonably be obtained by other methods. Because this Court lacks authority to compel
participation by Ms. Willcott and because such participation is necessary in order that
justice be served in the above-captioned proceedings, this Court respectfully requests
assistance from the Supreme Court of Newfoundland and Labrador.
The applicants for this Letter are Plaintiffs and it is respectfully requested that the
executed request be returned to lead Counsel for Plaintiffs:
Brian T. Moriarty
HAMILTON BROOK SMITH & REYNOLDS P.C.
530 Virginia Road
P.O. Box 9133
Concord, MA 01742-9133
A response is requested as soon as possible in order to ensure that the evidence may
be obtained in advance of the schedule for post-discovery motion practice, currently
anticipated to begin in the fall of 2017.
Summary of the Action
Plaintiffs’ Complaint asserts that Defendants infringed one or more claims of the
U.S. Patents referenced above, each of which patents pertains to methods of raising preadult anadromous fish, such as salmon. Ms. Willcott is or was a senior technician at
Defendants’ Swanger Cove Hatchery. In that capacity, she has participated in hatchery
practices that, according to Plaintiffs, infringed the patents-in-suit. Important factual issues
in this action include Defendants’ hatchery practices related to the addition of PVCR
modulator to freshwater fish tanks, whether the practices met the specifications of the
patents-in-suit, and whether they were understood in the prior art or would have been
obvious to the person of ordinary skill in the art. Plaintiffs seek to depose Ms. Willcott in
part because she appeared in an episode of Undercover Boss Canada with Cooke
Aquaculture CEO, Glenn Cooke, as set forth more fully in this Court’s Order on Motion
for Issuance of Letter Rogatory.
Evidence Requested from Jean Willcott.
This Court requests that the Supreme Court of Newfoundland and Labrador
summon Jean Willcott to appear before a person empowered under Newfoundland law to
administer oaths and take testimony. The questions asked of Ms. Willcott under oath or
affirmation will pertain to the activities appearing in the Undercover Boss Canada, Season
2, Episode 4 and the regular practices and procedures of the Swanger Cove Hatchery from
2009 to the present, including:
1) the reasons why Ms. Willcott was instructing Mr. Cooke to add magnesium
chloride and calcium chloride into the tanks;
2) from whom Ms. Willcott received instructions to add magnesium chloride and
calcium chloride into the tanks or from where she obtained the idea to do so;
3) how Ms. Willcott determined the number of bags of magnesium chloride and
calcium chloride that were to be added to the tanks by Mr. Cooke;
4) identification or confirmation of the tanks appearing in the episode as correlating
to “Cell A” and “Cell B” of the log books;
5) the hatchery’s practices and procedures for adding magnesium chloride and
calcium chloride to the tanks, as well as identification of any other materials, particularly
PVCR modulators, added to the tanks;
6) the hatchery’s methodology in adding a varying number of bags of magnesium
chloride and calcium chloride to each of the tanks each day;
7) the volume of each of the tanks;
8) the hatchery’s purpose in recording water hardness and the practices involving
such record keeping;
9) whether the varying amounts of magnesium chloride and calcium chloride
recorded as having been added each day were in response to measured water hardness;
10) the hatchery’s practices and procedures for feeding fish, including on the day
the Undercover Boss TV episode was filmed;
11) why particular fish feeds were used at the Swanger Cove Hatchery and how they
were administered to salmon; and
The deposition would be taken by the parties’ legal representatives, including their
counsel based in the United States, and recorded verbatim, including by audio and/or video
Reimbursement for Costs
To the extent the Court incurs expenses associated with providing assistance in
response to this Letter Rogatory, this Court will see that the Supreme Court of
Newfoundland and Labrador is reimbursed by Plaintiffs.
If the Supreme Court of
Newfoundland and Labrador determines that Ms. Willcott will incur significant costs to
provide the requested discovery, the reimbursable expenses will be borne by Plaintiffs.
This Court stands ready to extend similar assistance to the judicial tribunals of
Canada pursuant to 28 U.S.C. § 1782(a).
/s/ John C. Nivison
John C. Nivison
United States Magistrate Judge
United States District Court, District of Maine
202 Harlow Street
Bangor, Maine 04401
Dated this ___ day of August, 2017.
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