PRACTICE |
Confidentiality Orders |
Merck & Co. v. Apotex Inc.
T-884-03
2004 FC 567, Harrington J.
14/4/04
8 pp.
R. 151 permitting Court to treat some material as confidential, to restrict access thereto, notwithstanding public interest in open, accessible court proceedings--In accordance with r. 151, Prothonotary issued order protecting confidentiality of certain documents, information applicants expect to produce--Respondent appealed order, submitting no need for it--R. 51 provides order of prothonotary may be appealed on motion to judge--Order not dealing with issues vital to final determination of case--Basic facts not appearing to have been misapprehended--Protective order arising in context of patent dispute--Prothonotary did not exercise discretion upon wrong principles in granting protective order--Court concerned with "counsel's eyes only" aspect of order, with requirement Apotex identify experts, obtain either Merck's approval, or, Court order, before disclosing confidential documents, information to them--"Counsel's eyes only" confidentiality orders not unknown but highly unusual--Such order should only be granted in unusual circumstances--"Bald" statement such order necessary insufficient--Evidence supporting application for order furnished by Director, Marketing Planning of Merck Frosst Canada & Co.--According to him, market for treatment, prevention of osteoporosis competitive and if Merck's competitors given access to confidential information it could give them advantage in market place--Informed by solicitors material normally filed in Court becomes part of public record, advised by Merck's US attorney protective order in similar form issued in US with respect to same types of documents--"Bald" statements may support need for protective order, but not justifying interference with normal solicitor-client relationship, right of party in litigation to consult with outside experts--In these respects, Prothonotary misdirected herself on law--No basis to support Merck's fear employers of Apotex, or outside expert hired by it, would make confidential information available to public, especially to Merck's competitors--Under current Rules, no need to identify experts consulted but not called as witnesses --Therefore, no need to give explanation--In normal course Merck would not know whom Apotex had consulted, would have no right to know--It advanced no reason supporting proposition expert on notice of protective order, who gave appropriate undertaking, would nevertheless pass on information to public, or to Merck's competitors--Appeal allowed in part, protective order modified--Federal Court Rules, 1998, SOR/98-106, rr. 51, 151.