Executive Summary: Key Legal and Evidentiary Issues

• Hayden AI Technologies, Inc. petitioned the BC Supreme Court to enforce a Letter of Request issued by a US federal court seeking deposition testimony and documents from non-party witness Debbie Kerr in connection with a patent infringement and trade secret misappropriation action in New York.
   
• Central to the dispute was whether Ms. Kerr's evidence was sufficiently relevant to the underlying US litigation, given that her role was limited to that of an executive assistant who forwarded documents and arranged meetings at her employer's direction.
   
• Relevance under Canadian law requires materiality and probative value; the court found Hayden's evidence in support of the petition to be largely hearsay, bald assertions, and unfounded suppositions insufficient to meet that standard.
   
• Obtainability was also contested: the court found no basis to conclude that the evidence Hayden sought from Ms. Kerr was unavailable from the US Defendants themselves, particularly Mr. Gill and Mr. Pulskamp, who directed her work.
   
• Hayden significantly narrowed the scope of its request at the hearing stage, but the court found this amounted to a fundamentally different request rather than a proper narrowing of the original Letter of Request.
   
• Dismissed with costs to Ms. Kerr, the petition failed on both the relevance and obtainability factors under the EchoStar framework, leaving the broader request unsupported on the evidentiary record before the court.

Facts of the case

Hayden AI Technologies, Inc. ("Hayden") is a US technology company that designed and developed a proprietary Automated Bus Lane Enforcement ("ABLE") system, which automates the identification and processing of traffic violations. Hayden owns several US patents related to the ABLE system. On May 8, 2023, Hayden commenced an action before the United States District Court for the Eastern District of New York — Hayden AI Technologies Inc. v. Safe Fleet Holdings LLC et al — alleging that the defendants infringed two of its patents and misappropriated its trade secrets, which were then used to create a competing product sold at a lower price. Hayden further alleged that the defendants engaged in product espionage in 2020 and 2021 during a test of the ABLE system on select New York City buses, in violation of a confidentiality agreement. The defendants in the US Action (collectively, the "US Defendants") include Safe Fleet Holdings LLC, Safe Fleet Acquisition Corporation, Seon Holdings Corp., Seon Design Inc., Rear View Safety Inc., and several individual employees, directors, and officers, including Tom Gill and Daniel Pulskamp.

Debbie Kerr ("Ms. Kerr") is a resident of Coquitlam, BC. Between November 2016 and April 2024, she was employed by Seon Design Inc., a subsidiary of Safe Fleet Holdings LLC, as an executive assistant to Tom Gill, who was then the Senior Vice President at Safe Fleet. Beginning in 2023, she also provided administrative assistance to Daniel Pulskamp, a Vice President at Safe Fleet. Her duties included maintaining Mr. Gill's calendar and email inbox, scheduling meetings, creating expense reports, arranging travel, attaching documents to meeting invitations as directed, collecting documents into a secure Safe Fleet Dropbox when asked to do so, and conducting public searches for documents related to Safe Fleet's competitors. Her employment ended in April 2024. She was not a party to the US Action.

On March 5, 2025, Hayden applied by letter to the Honourable Judge James R. Cho of the US District Court for the Eastern District of New York to issue a Letter of Request seeking the assistance of the BC Supreme Court to obtain Ms. Kerr's evidence. Judge Cho issued the Request on December 22, 2025. The Request sought Ms. Kerr's deposition testimony and production of documents in three broad categories: all documents and communications concerning Hayden; all documents and communications concerning the US Action; and all documents and communications concerning Hayden's documents, including Hayden's Series A Investor Deck. Hayden then petitioned the BC Supreme Court to enforce the Request. Ms. Kerr opposed the petition, arguing that Hayden had failed to show the evidence sought was necessary, relevant, or otherwise unobtainable from the defendants, and that the order sought was excessively broad and amounted to a fishing expedition.

Applicable law and framework

The authority of the BC Supreme Court to enforce letters of request from foreign courts is grounded in s. 53 of the Evidence Act, R.S.B.C. 1996, c. 124 and s. 46 of the Canada Evidence Act, R.S.C. 1985, c. C-5, both of which require the exercise of judicial discretion. The court applied the six-factor framework from EchoStar Satellite Corporation v. Quinn, 2007 BCSC 1225, as affirmed by the BC Court of Appeal in Liu v. Zhi, 2019 BCCA 427, and Monster Energy Company v. Craig, 2016 BCCA 290. Those factors are: (1) relevance; (2) whether the evidence is necessary for trial and will be adduced if admissible; (3) whether the evidence is otherwise obtainable; (4) whether the order would be contrary to public policy; (5) whether the documents sought are identified with reasonable specificity; and (6) whether the order is unduly burdensome. The court confirmed that enforcement is not a rubber-stamp exercise and that the Canadian court must engage in a substantive analysis. There is a presumption in favour of granting the request in the spirit of international comity, but that presumption yields to an inadequate evidentiary record.

Reasoning and analysis

Justice Fowler considered the petition by reference to the EchoStar factors, focusing principally on relevance and obtainability. On the question of relevance, the court observed that the evidence placed before Judge Cho on the original Request application was largely hearsay in the form of the LeGolvan Declaration — a declaration from Hayden's US counsel summarizing the claims and attaching four email exhibits. The court found that the New York Court had not delved deeply into the issues of relevance and that its determination was not made after a thoroughly contested application. Aside from the Fourth Amended Complaint (the "FOAC"), the only other information before Judge Cho was the LeGolvan Declaration, which the court characterized as largely offering hearsay opinions and bald conclusions.

Applying the Canadian standard for relevance — which requires both materiality and probative value, and is narrower than the US discovery standard — the court concluded that Hayden's arguments were largely unsupported and mostly based on unfounded suppositions. The evidence showed that Ms. Kerr forwarded documents, organized meetings, and conducted some limited public document research, all at the direction of Mr. Gill and Mr. Pulskamp. Justice Fowler found only a modicum of evidence that Ms. Kerr reviewed Hayden's Series A Investor Presentation and may have extracted some information from it that she forwarded to other US Defendants, but saw no evidence that she did anything more with the Presentation. The petitioner's submission that Ms. Kerr "played a central role" updating the US Defendants was found to conflict with extensive details in the FOAC itself about how the US Defendants obtained access to the Presentation, and was characterized as a bald assertion.

On the question of obtainability, the court noted that Ms. Kerr's document searches were conducted at the explicit direction of Mr. Gill and Mr. Pulskamp. What was relevant, in the court's view, was the judgment calls of those two individuals — not Ms. Kerr's. The court observed there was no evidence that Mr. Gill or Mr. Pulskamp had been deposed or answered interrogatories, and therefore no basis to conclude that the evidence Hayden sought from Ms. Kerr was unavailable from those two US Defendants. The claim that Ms. Kerr's emails were no longer recoverable was also rejected, as the record showed her emails were available from the email accounts of the US Defendants. The court found the petitioner's desire to know who else Ms. Kerr communicated with — beyond the US Defendants — had the hallmarks of a fishing expedition.

At the hearing, Hayden significantly narrowed the scope of its request, confining it to Ms. Kerr's involvement in discovering and/or distributing information regarding Hayden for Safe Fleet employees from 2020 to April 23, 2024. The court acknowledged that a court can narrow the scope of a letter of request at an enforcement hearing, but found that the degree of narrowing proposed by Hayden was so significant that it amounted to a fundamentally different request, rather than a proper narrowing of the original. In any event, the failure to establish relevance and obtainability was determinative.

Ruling and outcome

Justice Fowler dismissed the petition with costs to Ms. Kerr. The court was satisfied that Hayden failed to establish that Ms. Kerr could give evidence of sufficient probative value to the US Action, and further failed to establish that whatever evidence she could offer was not otherwise obtainable from the US Defendants who directed her work. The original Request, sweeping in scope, fell woefully short of the evidentiary support required, and the dramatically narrowed version proposed at hearing was treated as a different request altogether. No monetary award was specified in the judgment; costs were awarded to Ms. Kerr but the quantum was not stated.