Apotex Inc. v. Wellcome Foundation Ltd.
T-3197-90
MacKay J.
27/10/93
13 pp.
Application for confidentiality order following filing of defendant's affidavit of documents prior to production thereof for inspection by plaintiffs -- Action seeking declaration defendant's Canadian letters patent relating to pharmaceutical formulations of chemical compound (zidovudine) used in treatment of persons suffering from HIV/AIDS invalid and that designated products of plaintiffs not infringing any interest protected by patent -- Defendant presenting draft order based on model of protective orders consented to in parallel proceedings in U.S.A. -- Plaintiffs not agreeing to such order -- Order providing producing party may designate as confidential information believed in good faith to be proprietary or confidential which it desires not to be made public, and to designate as "confidential information -- counsel only" any documents or other information of such commercially sensitive nature that disclosure to persons other than those specified would reasonably be expected to result in injury to producing party -- Either designation subject to challenge at any time and resolution by Court -- Court, of its own motion, may order information designated by producing party not be considered confidential -- Exceptions relating to information in public domain or received from some other source or developed after disclosures by persons not having access to producing party's confidential information -- General principle of Court and its process being open to public scrutiny, including access for public to Court documents fundamental to our justice system -- Striking balance between that principle and interests of justice between parties, including bona fide commercial and proprietary interests of parties to litigation, leading to practice of providing by protective or confidentiality orders that information obtained in preparation for trial may in appropriate cases be maintained in confidence not accessible to general public in Court's processes -- Sufficient demonstration of need for confidentiality order in relation to information to be produced if moving party believes its proprietary, commercial and scientific interests would be seriously harmed by producing information upon which those interests based, particularly at pre-trial preparation stage -- Three considerations favouring grant of order basically in terms requested -- (1) Those terms reflecting terms of protective orders granted upon consent in parallel litigation in U.S.A. in which parties directly or indirectly involved -- Merits reasonably comparable protective orders, provided terms not contrary to principle or practice in this Court -- (2) While leaving initiative to producing party to designate what is confidential, order also providing opportunity to receiving party to object to classification as confidential, and Court ultimately controlling declassification of information originally classified as confidential -- (3) Court's practice of issuing protective orders in relation to information produced in discovery where party believing in good faith its commercial business or scientific interests associated with trade secrets may be seriously harmed by disclosure open to public access reflecting recognition preparation of litigation belonging to litigants -- Confidentiality order in terms sought by defendant and in absence of suggestions for modification of those terms by plaintiffs granted -- Federal Court Rules, C.R.C., c. 663, R. 448.