Insurer applied for a declaration that it was not required to indemnify the insured, who was a defendant in another action. The insurer sought leave under deemed undertaking Rule 30.1.01 to use the transcripts of the examination for discovery of the parties in the main action as the basis for its evidence in this application. The application judge granted that leave, noting that if discovery material in one action is to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the use is virtually non-existent and leave will generally be given. The judge noted that the same factual matrix was involved in the action and the application and granted leave.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.