Weatherford Canada Partnership v. Addie, 2012 ABQB 215

Court of Queen ’ s Bench of Alberta Citation: Weatherford Canada Partnership v. Addie, 2012 ABQB 215 Date: 20120402 Docket: 0603 04628 Registry: Edmonton Between: Weatherford Canada Partnership Plaintiff - and - Dave Addie, David Anderson, Glen Kinnee, Ted Harland, Dan Endersby, Midfield Supply Ulc, Midfield Supply International Ltd., Dale Denney, Douglas Golledge, John Letwinetz, Rick Endersby, Jakob Ambrosius, Artemis Kautschuk Und Kunstoff-Technik Gmbh, Wilhelm Kaechele Gmbh, West Met Tools & Machinery Ltd., John Doe 1 to 10, and Europump Systems Inc.

Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background and Facts [ 1 ] The detailed background of this action is set out in earlier judgments, including Weatherford Canada Partnership v Addie, 2010 ABQB 477 (“2010 Decision”). Throughout the years of document production and questioning, I have presided over several contested applications related to these issues.

Up to this point, these applications have been made primarily by Weatherford against various Defendants, who have demonstrated a tendency to refuse disclosure of relevant and material information. Now, Weatherford is refusing to disclose certain of its records, and certain Defendants (who are collectively referred to as the “Applicants”) are seeking

production. [ 2 ] This lawsuit was described by the Alberta Court of Appeal in Weatherford Canada Partnership v Addie , 2009 ABCA 195 : [2] The action involves a claim by Weatherford against former senior employees who left Weatherford to begin a competing PC Pump business through a new company formed called Europump Systems Inc. (“Europump”).

Weatherford claims that these employees breached their fiduciary duties and duties of confidence to Weatherford by, among other things, inducing other Weatherford employees to join them, and making use of proprietary and confidential information with the complicity of Weatherford’s key parts suppliers, Artemis and Kaechele. Weatherford says that the defendants targeted Weatherford customers. [3] Weatherford claims specifically that Artemis and Kaechele manufactured stators for Weatherford based on confidential and proprietary design specifications provided by Weatherford.

Weatherford further claims that Artemis and Kaechele supplied Europump with stators which have identical specifications to those supplied for Weatherford.

Europump’s business plan indicates that Artemis and Kaechele will be minor partners in Europump. [4] Weatherford’s claim against Artemis and Kaechele is based on breach of confidence/unauthorized use of confidential and proprietary information, interference with economic interests, inducing breach of contract, and conspiracy. [ 3 ] The Statement of Claim disclosed the following allegations relevant to the issues before me: • that the Defendants were given access to Weatherford’s confidential information to manufacture rotors and stators for Weatherford: paras. 85, 87. • that the Defendants collectively conspired to misuse Weatherford’s confidential information to unfairly compete with Weatherford, and provided Weatherford’s confidential information to Europump: para. 110. • that certain specifications (specifically, rotor and stator pitch) cannot be accurately measured from an existing pump.

In order to replicate Weatherford’s PC pump models, the Defendants required access to Weatherford’s confidential information: para. 89. • that Weatherford was required to increase its operating costs in order to maintain operating capabilities in the face of the wrongful acts of the Defendants: para. 122. • that the Defendants’ wrongful actions enabled Europump to “springboard” into production, thereby avoiding the costs which would have been required to develop a competing product without benefit of the confidential information. [6] On February 15 and 16, 2011, the Defendants questioned Mr.

Graham Giffen, Weatherford’s human resources manager, on the Second Supplemental Affidavit of Records. The interview included questions and requests for undertakings about Weatherford’s efforts to reverse engineer the equipment which had previously been made by its German suppliers, Artemis and Kaechele. [7] On April 19 and 20, 2011, the Defendants questioned Mr. Murray Harbin, Weatherford’s current PC Pump Production Manager. Mr.

Harbin testified that he was part of a team working to rationalize Weatherford’s production of PC Pumps, which included shifting production of stators to Weatherford’s own production facilities in Strathcona, Alberta. Mr. Harbin testified that he had assisted others at Weatherford in measuring PC Pump components for the purpose of replicating them. In June of 2011, following the questioning of Mr. Harbin, Weatherford produced records referred to as WCP-158, WCP-159 and WCP-160.

These records disclosed that employees of Weatherford had undertaken a project apparently directed at replicating certain PC Pump components (the “German PC Product Line”) that had been manufactured by Artemis and Kaechele. The records were significantly redacted and referred to other records which had not been produced.

[8] Weatherford subsequently provided records relating to reverse engineering pumps (UT #163), pump development (UT #165), and meetings of the pump management group (UT #234). Weatherford did not identify or disclose any further records relating to pump development or replication. [9] Since the disclosure, Weatherford has refused to produce un-redacted versions of WCP-158, WCP-159, and WCP-160, or any further records referred to in those records. The Applicants now seek production of these records.

Applicable Legislation and Authorities [10] The Applicants rely on Rule 5.2 of the Alberta Rules of Court , Alta Reg 124/2010, which states: When something is relevant and material 5.2(1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or the record or information, could reasonably be expected (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. [11] Rule 5.6 stipulates that all relevant and material records must be disclosed: Form and contents of affidavit of records 5.6(1) An affidavit of records must (

b) disclose all records relevant and material to the issues in the action. [12] The obligation to produce relevant and material records continues throughout the litigation, as prescribed by Rule 5.10: Subsequent disclosure of records 5.10 If, after a party has served an affidavit of records on other parties, the first party finds, creates or obtains control of a relevant and material record not previously disclosed, the first party must (

a) immediately give notice of it to each of the other parties, (

b) on written request and on payment of reasonable copying expenses, supply each of the other parties with a copy of it, and (

c) prior to scheduling a date for trial, serve a supplementary affidavit of records on each of the other parties.

Applicants’ Position [13] The Applicants seek three main remedies, which can be summarized as follows: 1. An order directing Weatherford to produce un-redacted versions of its records WCP-158, WCP-159 and WCP-160. 2. An order directing Weatherford to review its records and produce (

a) any further relevant and material records, and (

b) all records relating to (

i) the development of the progressive cavity pumps in issue and (ii) efforts to reverse engineer or replicate progressive cavity pumps. 3.

A declaration that Weatherford has failed to properly search for, discover, and produce all relevant and material records. [14] Records WCP-158, WCP-159 and WCP-160 deal with Weatherford’s attempt to produce, at its Strathcona facility, thecomponents previously produced in Germany. [15] The Applicants’ argument rests on Weatherford’s allegation that the Defendants must have misused Weatherford’sconfidential information for the benefit of Europump because specifications such as stator pitch cannot be accurately measured from anexisting pump: Statement of Claim at para 89.

Weatherford further alleges that the Defendants could not have reverse engineered thestators so quickly without relying on Weatherford’s confidential information. The Applicants disagree and allege that PC Pumps can beaccurately measured and reverse engineered without using Weatherford’s confidential information. [16] Relying on Weatherford’s allegation, the Applicants submit that records which deal with the ability to successfully replicateor reverse engineer a PC Pump will significantly help determine whether there has been misuse of Weatherford’s confidentialinformation by the Defendants.

In addition, the Applicants submit that details of the processes, costs and timelines for such replicationefforts will significantly help determine whether it was possible for the Defendants to accomplish the alleged replication and reverseengineering without using Weatherford’s confidential information.

The Applicants also contend that the question of which confidentialinformation Weatherford had in its possession is relevant to determining many of the issues in this litigation. [17] The Applicants further submit that the design and technical steps required to successfully accomplish reverse engineering willsignificantly help determine whether Weatherford’s allegations that the Defendants could not have accomplished it in such a shorttimeframe are true.

The Applicants contend that the level of complexity involved in the technical aspects of reverse engineering isdirectly relevant to the allegations raised by Weatherford in its pleadings. [18] The Applicants also submit that the ability to replicate PC Pump stators, and the time and cost involved in doing so, relatedirectly to the scope of damages payable if Weatherford succeeds in proving its allegations concerning breaches of fiduciary duties byDefendants Addie, Anderson, Harland and Kinnee, as well as its conspiracy claims against the other Defendants.

The Applicants refer toCadbury Schweppes Inc v FBI Foods Ltd, (SCC), [1999] 1 SCR 142, where the Supreme Court held that damages formisuse of confidential information should be limited to the length of time that it would have taken the defendant to determine a recipebased on sources other than confidential information.

Relying on this and other cases, the Applicants conclude that any evidence relatingto the timing and cost of replicating PC Pump stators is relevant to the issue of damages. [19] Finally, the Applicants refer to Weatherford’s allegation that it incurred significant additional costs in an attempt to deal withthe Defendants’ wrongful actions. In connection with this allegation, they submit that, to the extent the requested records show the costof replicating the PC Pump models in-house and the increased internal production, they are relevant to Weatherford’s pleadings onspecial damages.

[20] For these reasons, the Applicants submit that the requested documents are directly relevant to issues of both liability and damages. As a result, they submit that the records are producible under Rule 5.2. Weatherford ’s Position [21] Weatherford says that the actions of the Defendants forced it to take steps to begin manufacturing PC Pump stators in-house. Had the Defendants not done the alleged wrongful acts, Weatherford submits it would not have allocated its Strathcona production resources to duplicate the German production capacity of Artemis and Kaechele.

However, Weatherford submits that it did not need to reverse engineer the pumps or measure the stator pitch for design purposes because it already had the required specifications.

It contends that the records the Applicants seek do not exist. [22] Weatherford further submits that the issues in this litigation are confined to nine specific models, and in relation to those, the only specification in issue is the measurement known as “pitch.” Weatherford points out that it never insisted that the Defendants provide information and records related to other pump models or other technology, nor asked that the Defendants disclose what they redacted in this regard.

Weatherford contends that any changes to this scope of production would require all parties to produce thousands of additional records that would be, at most, only tangentially relevant. [23] On the basis of the foregoing, Weatherford also submits that it has already produced the relevant records. Weatherford contends that its engineering files related to the nine pump models in question were disclosed in an affidavit of records filed in December of 2006.

These engineering files demonstrate that the pitch specifications at issue were known to Weatherford years before this lawsuit was commenced. [24] With respect to specific records that are the subject of this Application, Weatherford submits as follows: WCP 158 (

a) relates to another project which is not relevant and material to the project to repatriate the German-made components; (

b) relates to technology and pump models which are not in issue; (

c) references global numbers which cover several pump models that are not in issue; or (

d) relates to the development of new pump models. WCP 159 (

a) references global numbers which cover several pump models that are not in issue; (

b) relates to technology and pump models which are not in issue; or (

c) references preliminary budgets and estimates as opposed to actual costs. WCP 160 (

a) relates to technology and pump models which are not in issue; (

b) references historical information which is not relevant and which the Defendants already have; or

(

c) references preliminary budgets and estimates as opposed to actual costs. [25] Weatherford further submits that the Applicants failed to disclose in their submissions (

i) that they knew that Weatherford already had the specifications and manufacturing capabilities required to manufacture the relevant pump models, (ii) that Weatherford had produced its historical engineering files containing the specifications, and (iii) that they knew that Weatherford was already making the stator models in question prior to this litigation.

Further, the Defendants failed to mention some of the transcript evidence that suggests that Weatherford was already manufacturing at least some of the stator models in-house. [26] Weatherford submits that it has always acted diligently and reasonably in producing relevant records. Specifically, it states that the Applicants never replied to its request to indicate the scope of a cross-examination the Applicants sought in September 2010, and, as a result, Weatherford was left to guess what topics might be of concern and who might be the best officer to produce.

In addition, Weatherford submits that it offered to accommodate any concerns the Defendants might have about quantum records by offering to generate further records from its JD Edwards database. The Defendants never requested any specific quantum information.

Weatherford states that it has produced thousands of records related to quantum, and that it will continue to do so as the quantum issues are clarified. [27] Weatherford also submits that the Applicants cannot rely on transcript evidence as they have not provided Weatherford’s officer with an opportunity to acknowledge the accuracy and completeness of the transcript references relied on, as required by Rule 5.29(1). [28] Finally, Weatherford draws attention to the fact that the parties to this litigation are now competitors.

They do not want to disclose to each other, or to others, confidential information that does not significantly help determine an issue in the litigation. The Issue [29] There is one main issue I have to resolve: 1. Are records WCP-158, WCP-159 and WCP-160, to the extent they relate to (

i) the development of the progressive cavity pumps in issue or (ii) efforts to reverse engineer or replicate these progressive cavity pumps, relevant and material to the issues raised in this action? Analysis and Reasons [30] In the 2010 Decision I considered that, given the nature of the application, it was appropriate to look not only at the specific examples raised, but also at the history of disclosure issues over the last four years, since there had been previous occasions on which similar issues had arisen.

The parties' prior conduct and their positions in relation to them are relevant to the issues in this application. I will therefore refer to them in these reasons. [31] As I noted in the 2010 Decision, the case law confirms that the issues of relevancy and materiality are tied to the scope of the pleadings, since it is the pleadings which define the issues, which in turn determine relevance: Liu v West Edmonton Mall Property Inc , [2000] AJ No 1274 at para 20 ; Weatherill Estate v Weatherill , 2003 ABQB 69 at paras 16-17 .

Weatherford previously argued, at para. 9 of its February 11, 2011 Written Brief (“February 2011 Brief”):

The pleadings define the issues in an action. Relevance is then determine based on the issues. The pleadings also determine what is material. The nature of the issue and how it might be proved also factor into the determination of what is material.

The Applicants agree that this is a correct statement of the legal principles that apply here. [32] In Weatherill , at paras 16-17 , also cited by Weatherford in its February 2011 Brief, Slatter, J. (as he was then) held that courts should not be overly strict in assessing relevance and materiality in a situation such as the one I am dealing with here: At an interlocutory stage of proceedings, the Court should not measure counsels’ proposed line of argument too finely; if counsel can disclose a rational strategy in which the disputed document plays a material part, that should be sufficient.

That relevance is determined by the pleadings, while materiality is more a matter of proof can be seen by the wording of the Rule. The Rule talks about records that can “help determine” an issue, or that can “ascertain evidence” that will determine an issue. These are words of proof, and materiality must be determined with that in mind. [33] In general, parties to an action have an obligation to produce all relevant and material records. Only a party knows what records it has: see the 2010 Decision at para 44.

Earlier in these proceedings, when certain of the Defendants argued that Weatherford ought to specify what additional records it wanted produced, partly on the basis that it would be inconvenient and time consuming for the Defendants to review their records again without that information, Weatherford argued that it was unreasonable to expect it to detail what records it felt were missing since only the Defendants knew what they had. I agreed with Weatherford.

To the extent that Weatherford now advances a similar argument when requested by the Defendants to produce further records, I reiterate that a party’s obligation to produce is not contingent upon the opposing party identifying what records they think are in the possession of the other. Nor is inconvenience or the expenditure of effort a reason for delaying or refusing production. [34] It is not appropriate to restrict the scope of discovery if it might impact the trial judge’s ability to later adjudicate on an issue: Matichuk Equipment

(1991) Ltd v Northern Truck & Industrial Supplies Ltd , 2003 ABQB 608 . In that case, Acton J. dealt with a similar claim involving a plaintiff seeking accounting of profits arising from alleged misuse of confidential information. Acton J. took a broad view of what is relevant and material to quantification of damages and ordered production of all financial statements, monthly sales summaries, month end reports, aged accounts receivable listings, product group sales summaries, and all extra parts sales summaries for the relevant period: Matichuk Equipment at para 18 .

I agree with and am guided by these authorities. As a result, I will approach the question of relevance and materiality flexibly, mindful of the scope of the pleadings. [35] Weatherford previously argued that defences raised to a plaintiff’s allegations can put more matters in issue and, therefore, the scope of what is relevant and material necessarily broadens, since those issues have not been admitted and must be proven: Weatherford’s February 2011 Brief at para 11; Weatherford Canada Partnership v Addie , 2011 ABQB 562 at para 17 (“2011 Decision”).

The Defendants have denied any use of Weatherford’s Confidential Information and any loss on its part. In line with Weatherford’s prior submissions, this warrants a broad scope of disclosure. Everything relating to liability and damages is in issue and must be proven. [36] The allegations Weatherford advances and the remedies it seeks in its Statement of Claim are likewise extremely broad.

It alleges that the Defendants have misused its Confidential Information and seeks accounting of profits realized by the Defendant Europump through such misuse or, alternatively, it seeks special damages in the amount of the losses it incurred due to the Defendants’ wrongful actions. [37] I conclude that the records pertaining to Weatherford’s attempts to “replicate” the nine models in question are relevant to both liability and the amount of damages.

This mirrors Weatherford’s prior argument that control over the technology in issue and profits generated by it are directly relevant to the issue of liability and quantum: 2010 Decision at para 20. [38] With respect to liability, I find that records dealing with Weatherford’s attempts to replicate any of the components of the nine models in issue which were previously produced by Artemis or Kaechele will provide evidence with respect to the ability to replicate the models in question and will significantly help determine whether there has been misuse of Weatherford’s confidential information as

alleged. The processes and information used (whether already in Weatherford’s hands, not in its possession, or some combination thereof), as well as costs incurred by Weatherford, will help determine whether it was possible for the Defendants to produce stators without using Weatherford’s confidential information.

The records in question may also point to other documents that may provide relevant and material evidence, within Rule 5.2(1)(b). [39] In addition, the records detailing the resources expended by Weatherford in replicating the stators will help quantify the “springboard effect” allegedly realized by the Defendants through their misuse of Weatherford’s confidential information.

As discussed above, the Supreme Court held, in Cadbury Schweppes , that the remedy of accounting of profits for misuse of confidential information should be limited to the length of time that it would have taken the Defendants to come up with the end result on their own. If liability is established, the question will be: how much of a head-start did Europump have? The costs and duration of Weatherford’s efforts to repatriate the German-made stators will assist the trier of fact in quantifying the profits, should the Defendants be found liable.

In that regard, at the application there was some indication that at least some of the components of the PC pump models in issue may have had to have been reverse engineered by Weatherford because those components did not involve Weatherford’s confidential information and may have been the confidential information of others (including some of the Defendants). [40] Weatherford contends that it did not attempt to reverse engineer the models in question and blames an unfortunate word choice (i.e, “replication”) for the confusion.

It maintains that it used the confidential specifications it already owned to produce the equipment in-house. As a result, Weatherford argues, the resources it spent on repatriating the German-made pumps have no relevance to quantifying the amount of benefit realized by Europump via the “springboard” effect. [41] I cannot accept this proposition in light of the contents of cross-examinations of Messrs. Lane and Harbin, as well as the unredacted portions of the WCP 159. The transcript of questioning of Mr.

Lane and the contents of WCP 159 suggest that Weatherford was doing more than taking existing specifications and producing product directly from them. Mr. Lane refers to stages of design, design review, and approvals from design reviews. The Applicants question why Weatherford needed to engage in design activities if it already had all required specifications in place. The design time involved was significant: 2.375 months of engineers’ time, 14.375 months of technologist time, and 5.375 months of technician time, as stated on WCP 159.

This appears to be inconsistent with the assertion that Weatherford already had all the specifications it needed to begin making the stators. Mr. Harbin admitted at his Questioning that Weatherford had attempted to reverse engineer the German-made stators and that he had been personally called on to measure the pitch of the rotors. [42] Even if Weatherford is correct in asserting that it did not reverse-engineer the German-made stators, this does not limit the scope of disclosure. WCP 158 and WCP 159 consistently refer not only to replication, but also to “commercialization” of the German stators.

Regardless of whether or not Weatherford used its own confidential information, commercialization activities (e.g. cores, tooling, prototypes) will assist the trial judge in assessing how long it would take for Europump to set up its operations without Weatheford’s confidential information. I reject the argument that the records in question are not relevant and material even if it is established that Weatherford relied on its own confidential specifications in producing the stators. Weatherford and Europump sell PC pump models. Stators are only one component of this equipment.

Weatherford claims damages for the sale of the pump models. There has been no suggestion that it is claiming only for that portion of the purchase price of the various pump models that is directly attributable to the stator. Therefore, information concerning reproduction of the pump models in issue at the Strathcona facility are generally relevant to the issues in this action, which are far broader than the issue of stator production. [43] I also conclude that the records dealing with Weatherford’s replication activities are directly relevant to the issue of special damages.

As an alternative to accounting for profits, Weatherford claims damages in the amount of costs it incurred due to the Defendants’ alleged misconduct. Mr. Harbin admitted in Questioning that Weatherford’s decision to repatriate the stator production was influenced by the Defendants’ actions. WCP 158, WCP 159, WCP 160 all provide information with respect to costs and costs savings as a result of Weatherford’s decision to move production to Alberta. All of the costs-related information is redacted out of these records. The costs incurred by Weatherford bear directly on the amount of special damages it claims.

Similarly, the cost savings realized by moving production away from Artemis and Kaechele are clearly relevant to the Plaintiff’s mitigation of its loss. So do the relative costs. Having brought special damages into issue, Weatherford cannot now complain that the Defendants are seeking disclosure of the costs and cost savings resulting from Weatherford’s decision to produce the stators itself.

That the cost information related to the models in issue may be mingled with information related to other models may create a difficulty in allocation but does not render the information irrelevant and immaterial. [44] I am also of the view that the savings realized by moving the production of the previously German-made stators in-house is relevant to the issue of causation. Mr. Harbin admitted in Questioning that it was in Weatherford’s interest to source internally, as opposed to external suppliers, because it wanted to utilize Weatherford’s Alberta manufacturing plants.

The additional information sought by the Applicants will also provide insight into the timing of the decision to move production in-house. Weatherford’s budget projections are relevant to this issue in that they are relevant to Weatherford’s motivation and timing of its decision to move production to

Strathcona. There is some evidence that in-house production was being contemplated prior to the Defendants’ departure from Weatherford. This is relevant to Weatherford’s assertion that it would not have moved stator production to Alberta but for the Defendants’ actions.

The information pertaining to Weatherford’s savings and the timing of its repatriation activities will significantly help determine whether and to what extent the Defendants’s conduct has caused the repatriation of stator production and the resulting damages claimed. [45] Weatherford also attempts to narrow the confidential information in issue to stator pitch. It argues that it had already provided information relevant to pitch in an Affidavit of Records filed in December 2006.

I cannot accept this argument for several reasons. [46] First, there is some evidence that pitch specifications were not known to Weatherford years before this lawsuit began, contrary to what Weatherford suggests. The statements made by Mr. Harbin in Questioning contradict Weatherford’s assertions. [47] Second, Weatherford’s submission that it had already disclosed the relevant records does not bar further disclosure.

In Trimay Wear Plate Ltd v Way , 2008 ABQB 707 at para 44 , Graesser J. held that partial production is not good enough; records which are relevant and material cannot be held back on the basis that they contain similar information to records already produced. This is the very argument the Respondent relied on when it was the party requesting disclosure in this lawsuit: Weatherford’s February 2011 Brief at para 13. [48] The issue of stator pitch cannot be divorced from the greater issues in this litigation. The use of the pitch specifications are part of the Plaintiff’s damages claim.

The Plaintiff claims accounting of profits with respect to whole assemblies, not a particular piece of intellectual property involved in it. The issue is how much Weatherford lost if it can prove that stator pitch was its intellectual property? The claim for accounting of profits requires the disclosure detailed above. Weatherford cannot use its own narrow issue characterization to avoid disclosure of records that are relevant and material to larger issues in this lawsuit. [49] As I indicated above, the parties’ past conduct in this litigation is relevant to the issues before me.

Having previously insisted on a very broad scope of production due to the broadness of the issues raised in the pleadings, Weatherford now seeks to narrow down the issues to stator pitch. It cannot seek the broadest

interpretation of the issues when seeking disclosure by the Defendants and insist on a narrow characterization when its own records are being sought. [50] Weatherford has argued that the Applicants cannot rely on transcript evidence because they have not provided Weatherford’s officer with an opportunity to acknowledge the accuracy and completeness of the transcript references relied on a similar issue arose during the course of questioning of the Defendants’ witnesses.

The Defendants had produced individuals other than the designated officer to provide evidence on areas where other employees had more knowledge and familiarity than the designated officer. When the individual who had been produced by the Defendants provided information that Weatherford wished to use to obtain further records, the Defendants noted that the information had not come from the designated officer and that it would have to adopted. Weatherford took exception with that position.

I am assuming that Weatherford is producing individuals who it feels are in the best position to provide information concerning the matters in issue because it is, as has been pointed out by Weatherford, a large company with defined areas of responsibility, making it impractical and unreasonable to expect one officer to have knowledge of everything. Production of the appropriate individual makes the process of questioning efficient, avoiding the delays that are caused when the person produced has no knowledge and has to go and obtain it from others following the questioning.

In any event, I find there is sufficient information contained in the redacted documents to allow me to conclude that the records ought to be produced. Furthermore, Rule 5.29(1) only applies to evidence given by a corporate witness during questioning that a party seeks to read in as evidence at trial unless a corporate representative has acknowledged the evidence as information of the corporation. The Rule has no application to these circumstances. [51] Weatherford submits that I should not order disclosure because the parties to this lawsuit are now competitors.

I rejected this argument when the Defendants made it earlier in this litigation. There is a Confidentiality Agreement in place to address this concern. [52] I find that the records the Applicants seek are relevant and material to the issues in this litigation. I order disclosure of un- redacted versions of Plaintiff’s records WCP 158, WCP 159, and WCP 160, all records relating to (

i) the development of the progressive cavity pumps in issue and (ii) efforts to reverse engineer or replicate progressive cavity pumps, as well as any other relevant and material records. As I previously held in the 2011 Decision, the scope of disclosure is restricted to information related to the nine specific pump models that are the subject of this dispute. Neither the Defendants nor the Plaintiff are required to disclose information related to any other pump models.

Conclusions [53] Accordingly, Weatherford is directed: 1. To produce un-redacted versions of records WCP 158, WCP 159, and WCP 160, to the extent that they relate to production of the nine specific PC pump models over which Weatherford has asserted confidential and proprietary rights; 2. To produce all records relating to (

i) the development of replacements for the nine PC pump models in question, and (ii) any efforts to reverse engineer or otherwise replicate the nine PC pump models in question. 3. The produce any other records that are relevant and material to this litigation. Heard on the 18 th day of January, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of April, 2012 D.L. Shelley J.C.Q.B.A. Appearances: Fausto Franceschi, Joe Rosselli, Fraser Milner Casgrain LLP for the Plaintiff Dan Scott Seveny Scott for the Defendant West Met

Kenneth W. Fitz McLennan Ross LLP for the Defendant Artemis W. Paul Sharek, Q.C. Emery Jamieson LLP for the Defendant Kaechele Tim Mavko Reynolds, Mirth, Richards & Farmer LLP for the Defendants Addie, Anderson, Kinnee, Harland and Europump Systems Inc. Predrag Anic Fleming LLP for the Defendant Midfield