The Federal Court has recently issued a practice direction relating to experimental testing for litigation. This practice direction resulted from arguments made in several recent cases to exclude testimony relating to experimental testing where the opposite party was not provided the opportunity to observe the testing.
In one such case (AbbVie Corporation v. Janssen Inc.), Justice Hughes admitted testing conducted without notice to the opposing party, stating as follows:
The practice direction states that where a party intends to establish any fact in issue by experimental testing, advance notice must be given to the other parties as to:
• the facts to be proven by such testing;
• the nature of the experimental procedure to be performed;
• when and where the adverse parties’ counsel and representative(s) can attend to watch the experiment(s); and
• when and in what format the data and test results from such experiment(s) will be shared with the adverse parties.
If the parties are unable to agree on the above points, the court will convene a case management conference to decide any points in dispute.
The practice notice indicates that unless the required notice has been provided, evidence of experiments cannot be adduced at trial without leave of the court. While at present this practice notice applies specifically to actions for infringement or validity of a patent, it is likely that the court will require this advance notice whenever experiments are to be conducted.