Too Little, Too Late: When A Letters Rogatory Motion Falls Short

The Federal Court’s decision in Aragon & Janssen v. Sandoz (2026 CanLII 54839 (FC)) dated June 8, 2026 reaffirmed that letters rogatory should be issued only where necessary for the proper administration of justice, while taking into account the principles of judicial comity and respect for foreign courts.

The underlying action concerns infringement and validity of Janssen's apalutamide patent. At the center of the dispute is the publication date of an abstract, known as the Smith Abstract, alleged to have been published by the European Society for Medical Oncology (ESMO).  

Sandoz argued that the abstract was publicly available before the patent's priority date and therefore qualifies as prior art. To establish this, Sandoz sought to compel evidence from two foreign sources:

• An employee at The Internet Archive in the U.S., whose Wayback Machine records allegedly show that the ESMO abstract book was published before the priority date; and
• ESMO in Switzerland, the organization responsible for publishing the conference abstract book.

Necessity of Request

In respect of The Internet Archive witness, the evidence established that the employee had already agreed to attend trial remotely or to attend a local in-person examination. Without any concrete reason to believe the witness would fail to appear, the Court saw no justification for involving a U.S. court and ultimately denied this portion of the request.

Timing of Request and Respect for Foreign Courts

The Swiss portion of the motion raised different concerns: timing and respect for foreign court resources.

Sandoz knew months prior to the motion date that it would likely need to bring a motion to compel evidence regarding the publication date of the Smith Abstract. Nevertheless, it brought its motion shortly before trial. The Court emphasized that although delay may not be a stand-alone reason to dismiss a motion for letters rogatory, the absence of due diligence in bringing it can weigh heavily against the moving party.

The Court emphasized that the moving party bears the burden of proving that foreign evidence can be obtained without prejudice to the trial schedule. Sandoz's evidence explained the Swiss process in some detail, but did not establish that the examination would be completed before the start of trial.  

The Court found that an expedited request was neither deferential to nor respectful of the Swiss courts. Given the uncertainty as to overall timing and the proximity of trial, the Court was unwilling to ask Swiss courts to intervene.

Voluntary Cooperation Comes First

Perhaps most importantly, the Court held that the motion would have been dismissed even if an examination of an ESMO representative could have been completed in time, because Sandoz failed to establish that a witness would not attend trial voluntarily.

Before asking a foreign court to compel testimony, parties are expected to demonstrate that they have sought voluntary attendance.  Here, the Court found no satisfactory evidence that Sandoz had ever asked ESMO to provide a witness voluntarily before turning to Swiss authorities. That omission proved fatal.

This decision underscores the need to act early, to respect the resources of foreign courts, to seek voluntary cooperation first, and to demonstrate a genuine need for foreign court assistance when requesting letters rogatory.