Opinion
1:21-cv-00021-SLG
06-23-2023
MAVERIX METALS INC., a Canadian corporation, et al., Plaintiffs, v. COEUR ALASKA, INC., a Delaware corporation, Defendant. COEUR ALASKA, INC., a Delaware corporation, Counter Claimant, v. MAVERIX METALS (NEVADA) INC., a Nevada corporation, Counter Defendant.
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER OF REQUEST) FROM THE ONTARIO SUPERIOR COURT OF JUSTICE FOR ORAL EXAMINATION (DEPOSITION) OF DESIGNATED DOCUMENT CUSTODIAN FOR KINROSS GOLD CORPORATION
SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE
The United States District Court for the District of Alaska (the “Court”) presents its compliments to the Ontario Superior Court of Justice and respectfully requests international judicial assistance to obtain testimonial evidence to be used in the above-captioned civil proceedings pending before this Court, which is necessary in the interests of justice.
I. REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
A. Sender/The Requesting Judicial Authority.
The Honorable Sharon B. Gleason
United States District Judge
U.S. District Court
222 West 7th Avenue, Room 229, Box/Suite #4
Anchorage, Alaska 99513 United States of America
B. To the Appropriate Authority in Canada/The Receiving Judicial Authority.
Ontario Superior Court of Justice
Toronto Courthouse
393 University Avenue, 10th Floor
Toronto, Ontario M5G 1E6 Canada
Telephone: (416) 326-4230
Facsimile: (416) 327-9470
C. Person to Whom the Executed Request Is to Be Returned.
Michael A. Grisham, Esq.
Nathan Bishop, Esq.
Dorsey & Whitney LLP
1031 West 4th Avenue, Suite 600
Anchorage, Alaska 99501
Counsel for Defendant Coeur Alaska, Inc.
This Court hereby requests that the attorneys for the Defendant in the above-referenced matter, as officers of this Court, be permitted to orally examine the designated document custodian for Kinross Gold Corporation.
D. Kinross Gold Corporation.
Kinross Gold Corporation is a business entity headquartered in Toronto, Ontario, Canada. Upon information and belief, Kinross Gold Corporation is not represented by counsel in this matter.
E. Request for Assistance.
Pursuant to the Canada Evidence Act, R.S.C. 1985, c. C-5 and the Ontario Evidence Act, R.S.O. 1990, this Court respectfully requests the assistance described herein as necessary to further the interests of justice. The assistance requested is that the Ontario Superior Court of Justice compel the taking of oral testimony under oath (deposition) of the designated records custodian of Kinross Gold Corporation and the production of the requested records from Kinross Gold Corporation by counsel for Defendant, as described in Section IV of this Letter of Request. This Court further requests that the Parties in this Action be granted permission to conduct such examinations under the U.S. Federal Rules of Civil Procedure.
This Court has reviewed the requests and determined that the subjects of anticipated examination are enumerated with particularity and are material to the facts at issue in this Action.
F. Purpose for the Oral Examination (Deposition) Requested.
All testimony will be used in relation to the above-captioned Action.
II. FACTUAL BACKGROUND
Pursuant to this request, Plaintiff seeks authentication testimony from the designated records custodian for Kinross Gold Corporation, and the production of certain business records from Kinross Gold Corporation in the above-captioned civil action pending in the United States District Court for the District of Alaska, which has appropriate jurisdiction over the matter.
Plaintiff Maverix Metals Inc. and Maverix (Nevada) Inc. (“Maverix”), through a purchase transaction, became the successor-in-interest to Kinross Gold Corporation regarding a Royalty Deed dated July 7, 1995, related to gold production from the Kensington Mine near Juneau, Alaska, USA. The above-captioned action is a dispute between Maverix and Coeur Alaska, Inc. (“Coeur”) regarding the proper interpretation of the provisions of that Royalty Deed.
Maverix brought claims for breach of contract and declaratory relief against Coeur, which filed counterclaims for declaratory relief. A trial date has not yet been set. Fact discovery is to be completed by August 22, 2023.
III. EVIDENCE SOUGHT IS MATERIAL TO THIS ACTION
The request seeks information pertaining to material issues in this action. Certain claims raised by Maverix have put at issue the original parties' intent and understanding regarding the drafting parties' intent and understanding of the relevant contract provisions, particularly with respect to the phrase ‘on the Properties,' their intended allocation of risk, and their knowledge at the time when they signed the Royalty Deed. Kinross may have documents that are relevant to these material issues.
IV. ASSISTANCE REQUIRED
The Court requests that the Ontario Superior Court of Justice compel the taking of oral testimony under oath of the designated records custodian for Kinross Gold Corporation by counsel for the Plaintiff, affirming that Kinross has made appropriate, reasonable, good faith efforts to locate all documents in its possession or control that are material to this action, and authenticating all such documents produced. If local law does not permit the use of oath or affirmation, then the evidence should be taken in the normal manner permitted by law. It is requested that the examination be conducted by stenographic means and continue from day to day until completed.
The subject of examination may include:
1. All documents and communications concerning or related to any aspect of the drafting, negotiation, or execution of the Royalty Deed.
2. All documents and communications made prior to the execution of the Royalty Deed in 1995 concerning or related to the development of Kensington Mine.
Finally, it is requested that the following Counsel of Record for the Parties be notified of the time and place for the examinations of Adam Fisher within a reasonable time prior to such examinations:
James E. Torgerson, Esq. (Bar No. 8509120)
STOEL RIVES LLP
510 L Street, Suite 500
Anchorage, Alaska 99501-1959
Unites States of America Email: jim.torgerson@stoel.com
Jonathan W. Rauchway, Esq. (Admitted Pro Hac Vice)
Daniel A. Richards, Esq. (Admitted Pro Hac Vice)
Nicholas R. Peppler, Esq. (Admitted Pro Hac Vice)
Kristin L. Arthur, Esq. (Admitted Pro Hac Vice)
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, Colorado 80202
Unites States of America
Email: jon.rauchway@dgslaw.com daniel.richards@dgslaw.com
nick.peppler@dgslaw.com kristin.arthur@dgslaw.com
Attorneys for Plaintiffs Maverix Metals Inc. and Maverix Metals (Nevada) Inc.
V. RECIPROCITY AND REIMBURSEMENT
A. Reciprocity.
This Court respectfully expresses its willingness to provide reciprocal judicial assistance to the Ontario Superior Court of Justice.
B. Reimbursement for Costs.
The fees and costs incurred in executing this request that are reimbursable pursuant to applicable law will be borne by Defendant in care of Counsel at the address below:
Michael A. Grisham, Esq.
Nathan Bishop, Esq.
Dorsey & Whitney LLP
1031 West 4th Avenue, Suite 600
Anchorage, Alaska 99517
United States of America
Counsel for Defendant Coeur Alaska, Inc.
VI. CONCLUSION
This Court, in the spirit of comity and reciprocity, hereby requests international judicial assistance from the Ontario Superior Court of Justice in the form of this Letter of Request seeking the oral examination (deposition), as described herein. Please accept the assurance of our highest esteem.