PUBLIC VERSION
CT-2015-001 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; and IN THE MATTER OF an application for orders pursuant to section 74.1 of the Competition Act for conduct reviewable pursuant to paragraph 74.01(1 )(a) and sections 74.05 and 74.011 of the Competition Act.
BETWEEN: THE COMMISSIONER OF COMPETITION Applicant -and-AVISCAR INC., BUDGETCAR INC. I BUDGETAUTO INC., AVIS BUDGET GROUP, INC. and AVIS BUDGET CAR RENTAL, LLC
Respondents NOTICE OF MOTION TAKE NOTICE that the Commissioner of Competition (the "Commissioner") will make motion to the Competition Tribunal before the Honourable Mr. Justice Barnes on December 1-2, 2015.
THE MOTION IS FOR: (a) an order directing each Respondent to deliver a proper response to the Question (defined below) contained in the Commissioner's Requests to Admit (defined below);
(b) in the alternative to paragraph (a), or if any Respondent denies that it has or had possession of its own documents, an order requiring that Respondent to
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produce further and better Schedules "A" and "B" to its Affidavit of Documents;
(c) in the further alternative to paragraphs (a) and (b), an order requiring the affiants for the Respondents' Affidavits of Documents to attend and be cross-examined with respect to each Respondent's Affidavit of documents at a date and time to be determined but no later than 7 days before the commencement of the examinations for discovery;
(d) an order directing each Respondent to produce a further and better schedule "C" to its Affidavit of Documents;
(e) an order requiring each Respondent to describe the basis for each redaction made to the documents it has produced in this proceeding;
(f) an order requiring that the Respondents produce their non-privileged relevant documents in an unredacted form;
(g) an order for directions, if necessary, regarding the conduct of the examinations for discovery, including the appropriate person to be examined on behalf of each Respondent;
(h) costs; and (i) such further and other relief as the Commissioner may request and this Tribunal may consider appropriate.
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THE GROUNDS FOR THIS MOTION ARE: Overview (a) This motion is necessary in order to address deficiencies in the Respondents' Affidavit of Documents and the productions attached thereto. Through this motion, the Commissioner seeks to ensure that the examinations for discovery in this proceeding, scheduled for December 2015, proceed expeditiously and efficiently.
Salient Procedural History (b) The Commissioner has commenced an application as against Aviscar Inc. ("Aviscar"), Budgetcar Inc. I Budgetauto Inc. ("Budgetcar"), Avis Budget Car Rental, LLC ("ABC Rental") and Avis Budget Group, Inc. ("Avis Budget Group") (collectively, the "Respondents"). The Commissioner seeks an order pursuant to section 74 .1 of the Competition Act (the "Act"), in respect of conduct reviewable pursuant to paragraph 74.01 (1 )(a), section 74.05 and subsections 74.011 (1) and (2) of the Act.
(c) The Respondents have defended the application. (d) Pursuant to the current Scheduling Order in this proceeding, the parties have exchanged affidavits of documents and the productions attached thereto.
(e) Examinations for discovery are scheduled to take place in December 2015. (f) Collectively, the Respondents have served three affidavits of documents: a. Aviscar and Budgetcar have, together, served one Affidavit of Documents sworn by William Boxberger, the Vice President and General Manager of Aviscar and Budgetcar;
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b. Avis Budget Group has served an Affidavit of Documents sworn by Ted Kushner, a paralegal in the legal department of Avis Budget Group and ABC Rental; and
c. ABC Rental has served an Affidavit of Documents, also sworn by Ted Kushner.
The Respondents Refuse to Confirm Possession of Their Own Documents (g) With respect to schedules "A" and "B", all three affidavits of documents contain the following oaths either from Mr. Boxberger or Mr. Kushner, where applicable:
I have listed in Schedule A to my affidavit the relevant documents that are or were in the corporation's possession, control or power for which no privilege is claimed.
I have listed in Schedule B to my affidavit the relevant documents that are or were in the corporation's possession, control or power for which privilege is claimed by the corporation, including the grounds for each such claim.
(h) On October 20, 2015, the Commissioner served upon each Respondent a Request to Admit pursuant to Rule 56 of the Competition Tribunal Rules (the "Requests to Admit"). Each Request to Admit contains a question seeking confirmation that each Respondent has or had in its possession each of the documents listed in its own Affidavit of Documents (the "Question").
(i) On November 6, 2015, each Respondent served duplicative responses to the Requests to Admit refusing to answer the Question outright. They note, in part:
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.. .further, the request to admit seeks, in part, the admission of facts already set out in [the Respondent's] Affidavit of Documents such that it is unnecessarily duplicative ...
[emphasis added] U) Accordingly, each Respondent seems to admit (through its sworn Affidavit of Documents and the aforesaid explanation for. refusing to answer the Requests to Admit) that it has or had in its possession each of the documents listed in its own sworn Affidavit of Documents. However, the Respondents refuse to confirm this fact by way of a formal admission in this proceeding.
(k) Confirmation that each Respondent has or had in its possession each of the documents listed in its own sworn Affidavit of Documents ought not to be a matter in dispute. The Commissioner seeks confirmation of this fact in order to narrow issues of dispute before the examinations for discovery begins so that the examination process can proceed expeditiously and efficiently.
(I) By refusing to confirm that it has or had possession of each of the documents listed in its own Affidavit of Documents, each Respondent has, in effect, removed any assurance that its Affidavit of Documents is accurate and complete (i.e. that each Respondent has, in fact, listed in its schedules "A" and "8" all relevant documents that it has or had in its own possession).
Deficient Schedules "C" (m)Schedule "C" to an Affidavit of Documents must contain a separate list of all relevant documents that were but are not longer in the possession, power or control of the party and for which no privilege is claimed, as well as a description of how the party lost possession, power or control of any document and its current location, as far as the party can determine.
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(n) Schedule "C" to the affidavits of documents of Aviscar, Budgetcar and ABC Rental fails to adhere to this requirement because they only contain the following "boilerplate" language without a separate list and description :
Communications including correspondence, e-mails, notes, reports and/or other documentation sent and received by me that were lost, destroyed and/or not archived, if any.
(o) Further, certain productions in this proceeding make clear that at least some of the documents listed in schedule "A" of one Respondent were (but are apparently no longer) in the possession of another Respondent. Relevant non-privileged documents that were but are not longer in the possession, power or control of a Respondent must (but have not been) listed and described in that Respondents' Schedule "C".
The Respondents Have Not Outlined Basis for Their Redactions (p) The Respondents have collectively produced at least 3,538 documents (and possibly more) that contain redactions.
(q) The Respondents have not but are obliged to indicate the basis for each redaction made to its documents.
(r) Further, the Respondents must produce all their non-privileged relevant documents in an unredacted form.
Directions Regarding the Conduct of the Examinations for Discovery (s) On November 6, 2015, the Commissioner's counsel wrote to the Respondents' counsel regarding the conduct of the examinations for discovery, including the deponents to be examined at the examinations for discovery. The Respondents' counsel has yet to respond. Depending on the Respondents' response, if any, the Commissioner may seek an order for directions regarding the conduct of the examinations for discovery.
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PUBLIC VERSION
(t) The Competition Act, section 69. (u) The Federal Courts Rules, section 223. (v) The Competition Tribunal Act, subsection 9(2). (w) The Competition Tribunal Rules, sections 34, 56, 57, 60, 64 and 65. (x) Such further and other grounds as counsel may advise and the Tribunal may permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
(a) The Affidavit of Derek Leschinsky, sworn November 12, 2_015; and (b) Such further and other material as counsel may advise and the Tribunal may permit.
DATED AT GATINEAU, QUEBEC, this 12 day of November, 2015
SIGNED BY: Counsel to the Commissioner of Competition DEPARTMENT OF JUSTICE CANADA Competition Bureau Legal Services 50 Victoria Street, 22nd Floor Gatineau, Quebec, K1A OC9 ·
Antonio Di Domenico (LSUC#: 52508V) Jean-Sebastien Gallant (LSUC#: 49319J) Katherine Rydel (LSUC#: 581431) Tel: 819-997-2837 Fax: 819-953-9267
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