A new prescription for disclosure: reformulating the rules for the Norwich order.

• Author: Yiu, Melody
• Position: Canada

I INTRODUCTION II THE ORIGINS OF THE ORDER III THIRD PARTY INTERMEDIARIES: THE CLASS OF RESPONDENTS The Mere Witness Rule The "Only Practicable Source" Requirement Summary IV THE THRESHOLD FOR AN ORDER V SCOPE OF THE INFORMATION VI BALANCING OF INTERESTS Privacy Confidentiality Breach of Confidence Defamation VII CONCLUSION ABSTRACT

The Norwich order is an equitable remedy that enables an applicant to discover the identity of a covert tortfeasor from an intermediary in order to assist the applicant in launching an action This article examines the various rules that define the Norwich remedy and how well they facilitate access to justice while protecting certain social interests The article argues that the threshold for granting disclosure should be kept low to ensure that legal recourse be as widely available as possible; to achieve that objective, the class of respondents should not be constricted by an arcane stricture known as the mere witness rule, nor by requiring too literally that the respondent be the only source of information On the other hand, the article argues that the scope of information available in a Norwich order should be kept narrow to prevent it from becoming a general right of discovery or from imposing an undue burden on the respondent. With respect to countervailing interests, the article analyzes several cases that raised confidentiality or privacy concerns. The article suggests that the privacy arguments in BMG Canada Inc. v. John Doe mischaracterized the basis on which a Norwich order is granted, and that privacy cannot be a shield for wrongdoing. Moreover, the article notes that under the Wigmore framework, personal interests will seldom outweigh society's interest in the correct disposal of litigation," hence only significant social concerns may tip the balance towards non-disclosure. The article argues that such social interests are present in the need to protect journalist sources and character references, and that courts should pay greater heed to the chilling effect that may occur if such informants were unmasked with Norwich orders.

RESUME

L'ordre de Norwich est un remade equitable qui permet a un demandeur de decouvrir l'identite secret d'un auteur de delits civils par un intermediaire afin d'aider le demandeur a lancer une action civil. Cet article examine les diverses regles qui definissent le remede de Norwich et a quel point elles facilitent l'acces a la justice tout en protegeant certains interets sociaux. L'article discute que le seuil pour accorder la revelation devrait etre garde discret afin d'assurer que ce recours legal soit aussi largement disponible que possible; pour atteindre cet objectif, la classe des repondants ne devrait pas etre resserree par une restriction mysterieuse connue sous le nom de seule regle de temoin, ni en exigeant trop litteralement que le repondant soit la seule source d'information. D 'une part, l 'article argumente le fait que la portee des informations disponibles dans un ordre de Norwich devrait etre maintenue etroitement pour l'empecher de devenir un droit general de decouverte ou d'imposer un fardeau anormal au repondant. En ce qui concerne des interets de compensation, l'article analyse plusieurs cas qui ont souleve des inquietudes de confidentialite ou d'intimite. L 'article suggere que les arguments d'intimite de BMG Canada Inc. c. John Doe ont mal caracterise la base sur laquelle un ordre de Norwich est accorde, et que l'intimite ne peut pas etre un bouclier pour l'injustice. D'ailleurs, l'article note que sous le cadre de Wigmore, les interets personnels seront rarement superieurs a l'interet de la societe pour la disposition correcte du litige; par consequent seulement les soucis sociaux significatifs peuvent incliner l'equilibre vers la non-revelation. L 'article argumente le fait que de tels interets sociaux sont presents dans la necessite de proteger les sources des journalistes et des references de caractere, et que les cours devraient avoir une plus grande attention a un effet refroidissant qui peut se produire si de tels informateurs etaient demasques avec les ordres de Norwich.

I INTRODUCTION

It has often been said that litigation is the most civilized method of settling disputes. For this characterization to be true, there must first be a lawsuit--and to commence a lawsuit the plaintiff must be able to identify the defendant. Unfortunately, just as victims of a crime often do not know their wrongdoers, some tort victims are ignorant of their tortfeasors. For example, a person who has been defamed on the interact will be stymied from pursuing a proceeding in the case of an anonymous posting. Similarly, a corporation may find its confidential documents leaked to the press by an unknown individual. Parties such as these may find that despite the use of private detectives or other resources the name of the perpetrator of the harm still eludes them. Normally, it would be the end of the road for these tort victims; however, where an intermediary can identify the wrongdoer, the prospective plaintiff may resort to a legal device called a Norwich order to compel the intermediary to disclose the identity of the alleged tortfeasor.

The Norwich order was created in the 1974 case Norwich Pharmacal Co. v. Commissioners of Customs & Excise, (1) where the House of Lords revived and modified an old equitable remedy known as the pre-action bill of discovery. This decision allowed a pharmaceutical company to find out from the customs authorities the identity of the party that had been secretly importing the company's patented drug into the country. Although the Norwich decision seemed to offer prospective plaintiffs a powerful tool, use of the remedy in the next few decades was scant. Except for a handful of sensational whistle blowing cases in England, the Norwich order has been mostly deployed in intellectual property actions with factual situations that are very similar to the inaugural case. There are two potential explanations for the infrequent use of this remedy. First, it is rare to have situations where there is both a covert tortfeasor and a knowledgeable intermediary. Second, litigants in Canada can seek relief through a "John Doe" order through the provincial court rules (2) and move to discover the wrongdoer's identity.

Despite its infrequent use, the scope of information disclosed by a Norwich order has expanded to include information other than the wrongdoer's name. Furthermore, the internet may increase the relevance of this remedy as internet anonymity has increased the prevalance of the types of situtions requiring Norwich orders: torts committed by covert defendants whose identities are known by third-party intermediates. Although there were a few pre-internet defamation cases that utilized the Norwich remedy, online message boards have created a surge in applications for judicial assistance in tracking down the sources of libelous messages. (3) Similarly, the recent case of BMG Canada Inc. v. John Doe (4) is at the forefront of another on-line phenomenon--large-scale anonymous file downloading and sharing. BMG also re-established the relevance of the Norwich order in another way: the case was adjudicated using Norwich principles despite its origins as a "John Doe" action, thus raising the possibility that the Norwich standard will now apply to all pre-action discoveries.

But even before this newfound prominence, the Norwich order warranted closer examination. Since the identity of the defendant is essential to start a lawsuit, a Norwich order effectively acts as a gatekeeper to the courthouse, and thus its boundaries crucially affect access to justice. The limits delineated in the original Norwich decision have not always been clear or logical, and due to the discretionary nature of the remedy, subsequent decisions have made its limits even hazier. The objectives of this article are to examine the various rules that define the Norwich order and how well they facilitate access to justice, and to analyze whether the balancing process accurately weighs the various interests involved, both public and private.

Part II of this article outlines briefly the history of the Norwich order and the nature of an equitable remedy. Part III looks at the class of respondents that may be summoned before the court, specifically addressing two rules that constrict this class of persons. The discussion seeks the elusive purpose of these two rules and concludes that relaxation or abandonment of the rules is desirable. Parts IV and V examine the level of proof required to obtain disclosure via a Norwich order and the scope of information that may be compelled, while at the same time suggesting more appropriate parameters for these elements. Part VI explores the final step in the adjudication of a Norwich order: the balancing of interests. This discussion analyzes the extent to which privacy and confidentiality may outweigh a plaintiff's right to sue, with a special focus on how the Wigmore test (5) may apply to the different individuals who typically request Norwich orders.

II THE ORIGINS OF THE ORDER

The Norwich Pharmacal Company was in an unusual quandary in 1974. From reports published by the customs authorities, it had learned of unlicensed imports of its patented drug furazolidone into the United Kingdom over the previous 10 years. The company tried to discover the identity of the importers, but was unsuccessful. While it was aware that the Commission of Customs and Excise had importation records containing this information, the Commission had denied its request for disclosure on the grounds of confidentiality. Moreover, the company could not sue the Commission for the release of the information it needed as there was no cause of action against the Commission. As such, the company turned to the courts for equitable relief.

The case ultimately progressed to the House of Lords where the House of Lords faced a rare legal...