William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No. 2009-04, Procedural Order No. 14 (September 19, 2012)
1. In this Order, the Tribunal clarifies the Disputing Parties’ obligation to produce documents that are responsive to the opposing Party’s requests where those documents post-date the Investors’ Notice of Intent dated February 5, 2008.
II. Procedural History and Arguments of the Disputing Parties
2. At the Procedural Hearing on June 8, 2012, the Investors argued that the Respondent had identified documents responsive to the Investors’ document production requests that it had refused to produce on the ground that they post-date the Notice of Intent.1 According to the Investors, the Respondent has not produced any documents dated after February 5, 2008, the date the Investors filed their Notice of Intent in this arbitration.
3. The Respondent confirmed that it had not produced any documents post-dating February 5, 2008.2 The Respondent argued at the June 8 hearing that it made the Investors aware as early as August 14, 2009, the date of its first production, as well as in several letters thereafter, of its position that “documents after [February 5, 2008] are irrelevant” and not responsive to a document request related to the Investors’ claims.3 In the Respondent’s view, the date of the Notice of Intent is the latest point in time at which an alleged breach of the NAFTA could have occurred.4
4. In response to a question from the Tribunal, the Respondent acknowledged that, hypothetically, a document made after February 5, 2008, could be responsive insofar as it recounts events occurring before that date; however, the Respondent could not recall identifying any such document.
5. In a letter dated August 10, 2012, the Investors claimed that the Respondent “previously confirmed that it had relevant documents dated after [February 5, 2008]” and requested that the Tribunal “order [the Respondent] to disclose all relevant documents that do not qualify under legal privilege.”
6. In a letter dated August 15, 2012, the Respondent maintained that it had confirmed the contrary at the June 8 hearing.