PRACTICE |
Confidentiality Orders |
Mark Anthony Properties Ltd. v. Victor International Inc.
T-1521-99
McGillis J.
10/2/00
5 pp.
Motion for issuance of confidentiality order in action for trade-mark infringement, passing off--Counsel for defendant objecting to inclusion of paragraphs 9(d) (restricting number of experts to whom confidential information may be disclosed), 11 (restricting use of confidential information for purpose of action only) in proposed confidentiality order--No basis in law for restricting, at pleading stage of action, number of experts to whom confidential information may be disclosed under terms of confidentiality order--Term "direct competitor" undefined, could require party to disclose in advance identity of expert, face risk of breaching confidentiality order--Portions of paragraph 9(d) deleted from confidentiality order--Nature of implied undertaking must be considered in order to determine whether paragraph 11 should be included in confidentiality order--Application of implied undertaking not dependent on existence of confidentiality order--Confidentiality orders having purpose distinct from implied undertaking--Proceedings often settled on basis of information disclosed between parties under terms of confidentiality order without even holding discoveries--In such cases, implied undertaking may not arise--Provision such as paragraph 11 of proposed confidentiality order necessary to govern subsequent use of confidential information--Inclusion of provision such as paragraph 11 in confidentiality order not objectionable, may be necessary depending on manner in which litigation unfolds--Such provision may also be necessary where, as in proposed confidentiality order, term "confidential information" defined very broadly, may include information beyond that disclosed in discovery process--Paragraph 11 not to be deleted from proposed confidentiality order--Motion allowed in part.