Date: 20061109
Docket: T-1113-04
Citation: 2006
FC 1338
Ottawa, Ontario, November 9, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
RIVARD
INSTRUMENTS, INC.
Plaintiff
and
IDEAL
INSTRUMENTS INC.
Defendant
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
In an
intensely competitive business environment, the information and documents
described would be of tremendous value to any competitors. Its disclosure to
employees or to other competitors would seriously damage their commercial
interest and competitive position.
[2]
“Attorneys
Eyes Only” provisions will not be lightly ordered and such provisions will not
be ordered based on “bald” assertions of the need for such protection. Such an
order will be made, however, where the evidence demonstrates that a party’s
commercial interests could be harmed without such an order. In fact, the Federal
Courts Rules, SOR/98-106 (Rules) specifically provide that, where the Court
orders that information be treated confidentially, only the solicitors of
record shall have access to the information unless the Court orders otherwise.
(Foster-Miller, Inc. v. Babcock & Wilcox Industries Ltd. (2002), 18
C.P.R. (4th) 334 (F.C.T.D.); Rule 152(2)(a).)
JUDICIAL PROCEDURES
[3]
The
Plaintiff, Rivard Instruments Inc. (Rivard), appeals a pre-trial Protective
Order granted by Madam Prothonotary Tabib. The Defendant, Ideal Instruments
Inc. (Ideal), asks that the appeal be dismissed.
[4]
The
Protective Order is a discretionary order that does not determine any question
vital to the final issue of this case. Accordingly, to succeed in this appeal,
Rivard must establish that the Protective Order is clearly wrong, in the sense
that the Prothonotary’s exercise of discretion was based upon a wrong principle
or upon a misapprehension of the facts.
[5]
In deciding
to grant the Protective Order, the Prothonotary considered the fact that a
Protective Order had been issued in a corresponding United States proceeding.
This was a relevant fact weighing in favour of the making of the Protective
Order in this action. Reliance on this fact was not an error of law or an error
in principle.
[6]
In
deciding to provide for “Counsel’s Eyes Only” protection, the Prothonotary
considered the highly confidential nature of the documents and the significant
risk to Ideal if the information were disclosed to persons involved in the
day-to-day business of Rivard. There was uncontradicted evidence before the
Prothonotary to establish these facts. In contrast, Rivard filed no evidence to
show that it was necessary, for the prosecution of this action, that any
particular “Counsel’s Eyes Only” documents be disclosed to employees of Rivard.
[7]
The
decision of the Prothonotary is consistent with Canadian Precedent on the
granting of Protective Orders, and there was uncontradicted evidence before the
Prothonotary to support the terms of the Protective Order. In contrast, Rivard
filed no evidence to support any of its objectives to the Protective Order.
Accordingly, there is no ground for this Court to interfere with the
Prothonotary’s exercise of discretion, and Rivard’s appeal should fail.
FACTS
[8]
Rivard is
the holder of Canadian Patent No. 2,298,277 (Rivard Patent), which relates to a
detectable hypodermic needle device.
[9]
Rivard
brings this action against Ideal based upon an alleged infringement of the
Rivard Patent. Specifically, Rivard alleges that Ideal has infringed the Rivard
Patent by making and selling in Canada
a product known as Ideal’s “D3 Needle”. Ideal has denied any infringement in
its Statement of Defence.
[10]
Ideal owns
two United States Patents in respect of the D3 Needle. These include United
States Patent No. 6,960,196 for a detectable hypodermic needle device (D3
Patent).
[11]
Ideal has
commenced an action against Rivard in the United States District Court in the State
of Iowa (US Action). In the US
Action, Ideal alleges that Rivard has infringed the D3 Patent through the sale
of Rivard’s detectable hypodermic needle in the United States.
[12]
This
Action and the US Action involve similar issues and facts. Pursuant to the
discovery rules that apply in the US Action, Ideal is obliged to produce to
Rivard in the US Action many of the same documents that Ideal is obliged to
produce to Rivard in this Action. As found by the Prothonotary, documents
produced in one jurisdiction are likely to also be produced in the other
jurisdiction.
[13]
Some of
the documents and evidence produced (and to be produced) by Ideal in the US
Action and in this Action contain highly sensitive and confidential commercial,
scientific and proprietary information.
[14]
US counsel for Ideal and Rivard
have agreed upon and entered a Protective Order in connection with the US
Action (US Order). The US Order is substantially the same as the Protective
Order granted by the Prothonotary.
[15]
Rivard
refused to consent to any Protective Order in this Canadian Action. Ideal was
justifiably concerned that, without a Protective Order from this Court, Ideal’s
production of documents to Rivard, in this case, would destroy any and all
protection afforded by the Protective Order entered by the US Court.
[16]
Prior to
the hearing of the motion before the Prothonotary, Ideal delivered to Rivard’s
Canadian counsel, Mr. Terry McManus, copies of those documents listed in
Schedule 1 of Ideal’s Affidavit of Documents. Those Schedule 1 documents that
are confidential were marked accordingly. They were delivered to Mr. McManus
pursuant to a formal undertaking of confidentiality that prohibited the
disclosure of the marked documents pending the Court’s ruling on the original
motion.
[17]
The great
majority of the documents that Ideal delivered to Mr. McManus were not marked
confidential and, therefore, are not subject to the Protective Order. The
documents that have been marked confidential were described in detail in
evidence filed before the Prothonotary. They include the following documents.
(a) Ideal’s
strategic and business plans which contain very sensitive strategic and
competitive information;
(b) Documents
related to Ideal’s manufacturing and supply arrangements in China including
references to suppliers, prices, volumes, customers, forecasts, product
specifications, strategic opportunities and budgets;
(c) Information
related to Ideal’s relationships with distributors including prices, market
analysis, profit margin information and contractual distribution arrangements;
(d) Scientific
test results related to the performance (in sharpness and strength) of the D3
needle;
(e) Technical
information related to the design and construction of Ideal’s D3 needle
including technical drawings;
(f) Detailed
notes of marketing contacts in Canada including names of contact persons at
Ideal customers and potential customers that include items discussed with those
persons that reveal Ideal’s business strategy and tactics; and,
(g) Detailed
reports of field visits and contacts with Canadian customers and prospects that
reveal business opportunities related to those customers, market intelligence,
and information related to competitive advantage as between D3 and Rivard’s
product.
[18]
Ideal has
consistently treated this information as confidential in nature. Among other
things, Ideal and its affiliates have consistently sought and obtained
Protective Orders when such documents must be produced in US litigation. Ideal makes every effort to
guard, protect and prevent disclosure of such information to third parties.
Such information is generally not made available to anyone who is not employed
by Ideal and is accessible only on a need-to-know basis to those employees who
need access to such information as part of their responsibilities at Ideal. The
highly sensitive and confidential nature of these documents was described in
detail in evidence filed before the Prothonotary.
[19]
Ideal
operates in an intensely competitive business environment. The information and
documents described above would be of tremendous value to any of Ideal’s
competitors, including Rivard itself. Its disclosure to employees of Rivard or
to other competitors would seriously damage Ideal’s commercial interest and its
competitive position.
[20]
The
disclosure of these documents to employees of Rivard is of particular concern
to Ideal’s management. Rivard and Ideal are vigorous competitors in the
business of supplying needles used in the vaccination and treatment of
livestock, in both Canada and the United States. If employees of Rivard have access to this information, it
could undoubtedly influence their business decisions, either consciously or
unconsciously, to the competitive disadvantage of Ideal. Among other things,
Rivard or other competitors could use this information to identify Ideal’s
strategic vulnerabilities or weaknesses, to pursue Ideal’s client contacts, and
to adopt strategies and tactics specifically designed to counter those adopted
by Ideal.
ISSUE
[21]
The issue
on this motion is whether the Prothonotary’s decision to grant the Protective
Order is clearly wrong.
ANALYSIS
Standard of Review on
Appeal
[22]
Rule 151 provides
a Prothonotary with discretionary power to make the Protective Order in order
to protect a party’s legitimate interest in the protection of confidential
information. (Teale v. Canada (Attorney General) (1999), 176 F.T.R. 234, [1999] F.C.J.
No. 2018 (QL).)
[23]
Rule 51
governs an appeal from a decision of Prothonotary. The Federal Court has held
that a Prothonotary’s discretionary order ought not to be disturbed on appeal
unless:
(a) The questions
raised in the motion are vital to the final issue of the case, or
(b) The
orders are clearly wrong, in the sense that the exercise of discretion by the Prothonotary
was based upon a wrong principle or upon a misapprehension of the facts.
(Netbored Inc. v. Avery
Holdings Inc. et al (2005), 42 C.P.R. (4th) 321 (F.C.T.D.), at
paras. 15-16; Pfizer Canada Inc. v. Canada (Minister of Health) (2005), 46 C.P.R. (4th)
25, at para. 4.)
[24]
The motion
before the Prothonotary did not raise issues vital to the final issue of this
case. Accordingly, this Court should not interfere with the Protective Order
unless Rivard shows it to be “clearly wrong”.
[25]
There is
no basis to suggest that the Prothonotary’s decision is clearly wrong. Her discretion
was not based upon a wrong principle or upon a misapprehension of the facts. On
the contrary, her decision is consistent with the principles established by
precedent and is supported by the evidence filed on the motion.
Test for Granting a Protective Order
[26]
A party
seeking a Confidentiality Order must establish only that it subjectively
believes its interests would be harmed by disclosure and that the information
is confidential from an objective perspective. (AB Hassle v. Canada
(Minister of National Health and Welfare) (1998), 81 C.P.R. (3d) 121
(F.C.T.D.), at para. 11; Apotex Inc. v. Wellcome Foundation Ltd. (1993),
51 C.P.R. (3d) 305 (F.C.T.D.), at p. 311.)
[27]
While
considerations related to the importance of open courts and public access to Court
proceedings may dictate a different result at trial, those considerations
should not weigh against the granting of a Protective Order that does not
specifically prohibit the disclosure of documents filed with the Court. (Apotex,
above; Foster-Miller, above.)
[28]
The
evidence before the Prothonotary satisfied the test set out in AB Hassle,
above, for the granting of a Protective Order. The record contained ample
evidence to establish the confidential nature of the information, and also to
establish Ideal’s subjective belief that its interests would be harmed by the
disclosure of that information. The evidence was contained in the Affidavit of
Mr. Richard Current, Ideal’s Secretary-Treasurer, and the Affidavit of Mr.
Lon Bohannon, one of Ideal’s Directors and the President of Ideal’s parent
company.
[29]
The
evidence of Mr. Richard Current and Mr. Lon Bohannon was very specific as to
the confidential nature of the information and the damage to Ideal if the
information were disclosed to the public or to Ideal’s competitor, Rivard. In
paragraphs 11 through 25 of his Affidavit, Mr. Bohannon described in
detail the nature of the confidential information. He also described precisely
how and why disclosure to Rivard would be damaging to Ideal. None of this
evidence was contradicted by any evidence from Rivard. It was not “clearly
wrong” for the Prothonotary to accept this evidence and to conclude that Ideal
had met the test for the granting of a Protective Order. In fact, it was
clearly right for her to do so.
The Relevance of the US Order
[30]
Rivard
argues that the Prothonotary erred in considering the US Order because that
order was not granted “on consent”. There are two flaws in this argument.
First, the form of the US Order was in fact agreed to by Rivard. Second, regardless
of whether the US Order was on consent, the principle underlying the relevance
of the US Order remains the same: where there is corresponding litigation in
the United States, there is merit in having
reasonably comparable Protective Orders. Accordingly, it was not “clearly
wrong” for the Prothonotary to have regard to the form of the US Order. (Apotex,
above)
[31]
There was
uncontradicted evidence before the Prothonotary that Rivard had actually agreed
to the form of the US Order. This evidence was set out in detail in the
Affidavit of Ms. Lilly Iannacito and the Affidavit of Mr. Bohannon. Ms.
Iannacito testified that, following a hearing in the US Action, Justice Paul A.
Zoss of the U.S. Federal Court decided that a Protective Order would be
granted, subject to the specific terms being agreed (or “stipulated”) by the
parties. Mr. Bohannon testified that counsel for both parties subsequently
agreed to the form of the US Protective Order and that the actual form of the
US Order was submitted on consent. There was no evidence to contradict any of
this.
[32]
In any
event, the desirability of comparable protective orders, as established in Apotex,
above, is not restricted to those circumstances where the foreign Protective
Order is entirely on consent. Nothing in the Apotex decision supports
such a restriction. The Prothonotary was correct to conclude that it is
important to avoid the possibility that the protection afforded by the US Order
might be defeated if a comparable order were not granted in this action. This
recognition and support of the US Protective Order is consistent with the
principle of judicial comity, a fundamental principle recognized and endorsed
by the Supreme Court of Canada. (Morguard Investments Ltd. V. De Savoye,
[1990] 3 S.C.R. 1077, at p. 1096; Judgment of the Prothonotary, p. 4.)
[33]
Rivard
also argues that the US Order is not relevant because the US Action is
different from this action. Rivard’s own conduct shows that this argument is
without merit. The evidence before the Prothonotary included a letter written
by Rivard’s counsel in the US Action, in response to Ideal’s request for a
Protective Order in the US Action. In that letter, Rivard’s counsel stated:
“…we are now informed by [Rivard] that they are unwilling to discuss the terms
of any proposed protective order in the above action until a decision is made
by the Canadian court in the corresponding proceeding in Canada
regarding the scope of a protective order, if any, that might be approved in
that action.” It is clear that Rivard itself considered the US Action to be
directly related to this action, certainly as far as the matter of a Protective
Order is concerned. Having taken that position in the US Action, it is not
credible for Rivard to argue that the US Action is so materially different that
the US Order should have had no bearing on the decision of the Prothonotary.
[34]
There was
also evidence before the Prothonotary that the documents produced by Ideal in
this action are subsumed within the documents that Rivard has sought from Ideal
in the US Action. The Prothonotary had before her the massive document
production request made by Rivard in the US Action, as evidence of this fact.
[35]
There was
also other evidence before the Prothonotary to show that the US Order might be
undermined if a corresponding order were not made in this action. Specifically,
Mr. Current testified that the US Action and this Action involve similar issues
and facts. He testified that, pursuant to the discovery rules in the US Action,
Ideal is obliged to produce to Rivard in the US Action many of the same
documents that Ideal is obliged to produce in this action. Mr. Current also
testified that, without a corresponding Protective Order in this Action,
Ideal’s production of documents to Rivard in this action would destroy any and
all protection afforded by the US Protective Order. Rivard filed no evidence to
contradict Mr. Current on these points. Given the evidence before the
Prothonotary, it was not “clearly wrong” for the Prothonotary to have regard to
the terms of the US Protective Order in deciding the motion.
Paragraph 9 – “Attorneys Eyes
Only”
[36]
Rivard
argues that the Prothonotary improperly ordered that certain confidential
information may be designated as “Attorneys Eyes Only”. There was evidence
before the Prothonotary to justify this order, however, and the order is not
“clearly wrong”.
[37]
Ideal
acknowledges that “Attorneys Eyes Only” provisions will not be lightly ordered
and that such provisions will not be ordered based on “bald” assertions of the
need for such protection. Such an order will be made, however, where the
evidence demonstrates that a party’s commercial interests could be harmed
without such an order. In fact, the Rules specifically provide that, where the
Court orders that information be treated confidentially, only the solicitors of
record shall have access to the information unless the Court orders otherwise.
(Foster-Miller, above; Rule 152(2)(a).)
[38]
There was
substantial evidence before the Prothonotary to show that Ideal’s interest
could be harmed without “Attorneys Eyes Only” protection for some documents.
Specifically, Mr. Bohannon identified a number of categories of documents
that required this level of protection, which he defined as the “AO Documents”.
Mr. Bohannon testified that Rivard and Ideal are vigorous competitors in the
business of supplying needles used in the vaccination and treatment of
livestock, and he provided details of Rivard’s aggressive competition with
Ideal. Mr. Bohannon also described in detail how the various AO Documents could
be used by employees of Rivard to damage Ideal. Mr. Current gave similar
evidence in his affidavit. Rivard filed no evidence whatsoever to contradict
Mr. Bohannon or Mr. Current. Given this uncontradicted evidence, it was not
“clearly wrong” for the Prothonotary to conclude that “Attorneys Eyes Only”
protection was appropriate.
[39]
Rivard
insists Mr. Meril Rivard and Ms. Susan Cepanec (in-house counsel to Rivard’s
parent company) have access to all documents produced by Ideal. Mr. Rivard and
Ms. Cepanec are actively involved in the day-to-day business of Rivard. Mr.
Bohannon testified that disclosure of the AO Documents to employees of Rivard,
and specifically to Mr. Rivard and Ms. Cepanec, is of particular concern to
Ideal’s management. If employees of Rivard, or anyone else involved in its
day-to-day operations like Mr. Rivard and Ms. Cepanec, have access to the AO
Documents, it can undoubtedly influence their business decisions, either
consciously or unconsciously, to the competitive disadvantage of Ideal. Among
other things, Rivard or other competitors could use this information to
identify Ideal’s strategic vulnerabilities or weaknesses, to pursue Ideal’s
client contacts, and to adopt strategies and tactics specifically designed to
counter those adopted by Ideal. As stated by Mr. Current in his Affidavit, once
employees of Rivard have had access to such sensitive and proprietary
information, they cannot be expected to have an “empty head” as to such
information as they make business decisions relating to their competing
products.
[40]
Rivard
argues that the Prothonotary acted on a wrong principle in providing for
“Attorneys Eyes Only” protection because the purpose of a Protective Order is
only to protect confidential information from disclosure to non-parties, and
not to prevent its disclosure to a party. This is an incomplete statement of
the purpose of a Protective Order. In many cases, the only purpose of an order
may be to prevent disclosure to non-parties. Where the parties themselves are
competitors, however, preventing disclosure to the opposing party is a
perfectly legitimate purpose of a Protective Order, particularly where the
evidence shows that the disclosure to the opposing party could injure the other
party’s interests. (Foster-Miller, above, at paras. 10-14.)
[41]
Rivard argues
that the “Attorneys Eyes Only” provisions represent an improper interference
with the solicitor client relationship, and suggests the provisions will hamper
Rivard’s ability to conduct its case. This argument lacks credibility. At the
time of the motion, Rivard’s counsel had in its possession all of the documents
for which Ideal was seeking “Attorneys Eyes Only” protection. Prior to the
motion, Ideal repeatedly requested that Rivard’s counsel identify any such
documents that he believed it necessary to disclose to Rivard. As Mr. Bohannon
testified, Rivard’s counsel repeatedly refused to identify any such documents. In
any event, should Rivard’s counsel ever identify an “Attorneys Eyes Only”
document that he must show to his client, the Protective Order permits him to
seek an appropriate variation from the Court if Ideal will not consent to
disclosure.
[42]
Rivard’s
objection to the “Attorneys Eyes Only” provisions is also inconsistent with its
own conduct in the US Action. There was evidence before the Prothonotary that
Rivard has taken full advantage of “Attorneys Eyes Only” provisions in the US
Order. Specifically, Mr. Bohannon testified that in answering interrogatories
in the US Action, Rivard had designated all of its answers as “Attorneys Eyes
Only”, including its answers to very basic questions. Thus, while Rivard
asserts the need to have its management see highly sensitive commercial
information from Ideal in this action, it refuses to let Ideal’s management see
even the most basic information in the US Action.
[43]
The
“Attorneys Eyes Only” provisions in the Protective Order mirror those contained
in the US Protective Order. It was reasonable for the Prothonotary to conclude
that any deviation from the terms of the US Protective Order might remove the
protection afforded by that order.
Paragraphs 10-11 – Disclosure
and Approval of Experts
[44]
Rivard
argues that the Prothonotary erred in law in providing in the Protective Order
for the disclosure of experts who will receive confidential information (Expert
Provision).
[45]
The
Prothonotary’s decision to include the Expert Provision is consistent with this
Court’s Decision in Apotex, above, where a similar provision was
included in the Protective Order granted in that case. The Expert Provision is
also consistent with the form of US Order agreed to by Rivard.
[46]
There was
uncontradicted evidence before the Prothonotary to support the Expert
Provision. Mr. Bohannon testified that, without this protection, the US
Protective Order could be circumvented or seriously undermined, and its benefit
completely lost. He testified that many people who might be retained as
“experts” in this case, may work with or be associated with a competitor of
Ideal, or even with Rivard itself. The “experts” may also themselves be
competitors or potential competitors of Ideal.
[47]
It is
important to note that the Expert Provision is not overly restrictive. It
permits the disclosure of confidential information to experts assisting counsel
provided certain protective steps are taken. If Ideal objects to the disclosure
to any particular expert, it is Ideal’s burden to bring that issue before the
Court. All that Ideal asks is an opportunity to be notified so that it can come
to Court if in fact the disclosure to a particular “expert” unfairly or
improperly threatens Ideal’s commercial interests. It would be up to the Court
to determine at that time whether Ideal had any proper ground for prohibiting
the disclosure, and ideal will face cost sanctions for any unreasonable
objection to an expert. Ideal has no desire to unreasonably interfere with
Rivard in the conduct of its case, but the information in these documents is
highly valuable information and the Expert Provision is a very reasonable
measure. It will impose very little burden on Rivard in relation to the immense
damage that may be done to Ideal in the absence of this form of protection. The
Prothonotary correctly concluded that Rivard had not established any good
reason to depart from the US Order in this respect.
Paragraph 13 – Storage of
Attorneys Eyes Only Documents
[48]
Rivard
argues that it was an error in principle for the Prothonotary to provide that
“Attorneys Eyes Only” documents be stored at the offices of counsel unless the
producing party consents to their removal or the Court orders otherwise. There
is no authority to show this was an error in principle. The provisions with
respect to the storage of “Attorneys Eyes Only” documents mirror the provisions
in the US Order. Rivard submitted no evidence on the motion to show why the
Canadian Protective Order should depart in this respect from the form of order
that it agreed to in the US Action. The Prothonotary correctly concluded that
the omission of this provision from the Canadian Protective Order had the
potential of undermining the effectiveness of the US Order. The Prothonotary
also noted that Rivard had failed to articulate any prejudice that Rivard would
suffer if the documents were treated in a manner consistent with the US Order.
The Prothonotary’s decision to include the storage provisions was not “clearly
wrong”.
[49]
Rivard
claims that soliciting consent to the transfer of “Attorneys Eyes Only”
documents will “alert the opponent” to confidential activity, but this is not a
reasonable objection. In reality, the request will only alert Ideal’s counsel
to the movement of highly confidential and sensitive material, which is a
reasonable limitation given the sensitive nature of the material. The
information within the documents could seriously jeopardize the commercial position
of Ideal if it were to fall into the wrong hands. Ideal has a strong interest
in knowing who is viewing the documents and where they are being stored to
ensure the security and protection of the confidential information.
Paragraph 16 – Onus of Justifying
Classification of Documents
[50]
Rivard
argues that the Prothonotary acted on a wrong principle in placing the onus on
the receiving party to challenge the designation of a document as confidential.
In fact, the Protective Order does not place any particular onus on the
receiving party, except that the receiving party must bring the matter to
Court. Even if the Protective Order does place an onus on the receiving party,
that is not an error in principle. Such an onus would be purely a matter of
discretion and would be consistent with the decision in Apotex, above,
where the Court expressly placed the onus on the receiving party to show that a
document is not confidential.
Paragraph 4 – Subject Matter
Excluded from Attorneys Eyes Only
[51]
Rivard
argues that paragraph 4 of the Protective Order reflects an error in principle
because it is not reciprocal. There is no strict requirement that a Protective
Order be perfectly reciprocal as between the parties in every respect. The
decision in Merck, above (relied upon by Rivard), shows that the Court may
make an order reciprocal but it does not establish that it must do so.
As found by the Prothonotary, paragraph 4 quite properly ensures that access to
documents of a technical nature, which form the essence of the claim for
infringement, cannot be unduly restricted. Paragraph 4 also mirrors a provision
in the form of US Order agreed to by Rivard in the US Action, where the roles
of plaintiff and defendant are reversed. In that sense, the Protective Order
actually achieves reciprocity.
CONCLUSION
[52]
Ideal’s
motion for the Protective Order did not rest on “bald assertions” as to the
sensitivity of the document in question. Ideal filed detailed affidavit
evidence as to the nature of the documents, the highly sensitive and confidential
material that the documents contain, the steps that have been taken to preserve
the confidentiality of the documents, and the potential harm that Ideal could
face if the information was released into the hands of a competitor. All of
this evidence was uncontradicted and it was not “clearly wrong” for the
Prothonotary to act on this evidence in issuing the Protective Order.
[53]
The
Protective Order was carefully drafted so that it would not substantially
interfere with Rivard’s ability to prosecute this Action and would not
compromise the public interest in access to Court proceedings. The Protective
Order imposes only those restrictions that are reasonably necessary to protect
the important interest that Ideal has in maintaining the confidentiality of its
information. The burden imposed upon Rivard in the circumstances is minimal and
it is far outweighed by the harm that would be done to Ideal if the Protective
Order were reversed or varied.
[54]
The
Protective Order will not unduly interfere with Rivard’s ability to conduct its
claim against Ideal. In particular:
(a) The
Protective Order does not restrict access to all documents but only those
designated as confidential;
(b) Ideal
must act reasonably in making such a designation of confidentiality;
(c) The
Protective Order provides a means for Rivard’s consultants and experts to have
access to all confidential documents;
(d) Rivard
may at any time challenge the designation of any document as confidential if
Rivard believes it is necessary to disclose that document to any person in
order to properly conduct its case; and,
(e) Abuse
of the Protective Order by Ideal could rightfully be sanctioned with cost
consequences.
[55]
For all of
the above reasons, Rivard’s appeal of Prothonotary Tabib’s pre-trial Protective
Order is dismissed with costs.
ORDER
THIS COURT ORDERS that Rivard Instruments Inc.’s
appeal of Prothonotary Tabib’s pre-trial Protective Order be dismissed with
costs.
“Michel M.J. Shore”
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