Date: 20070419
Docket: T-372-07
Citation: 2007 FC 412
Montréal,
Quebec, April 19, 2007
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
LUNDBECK
CANADA INC.
Applicant
and
THE MINISTER OF HEALTH
and
GENPHARM INC.
Respondents
and
H. LUNDBECK A/S
Respondent/Patentee
REASONS FOR
ORDER AND ORDER
[1]
H.
Lundbeck A/S (H. Lundbeck) is a pharmaceutical company focusing on the
treatment of disorders of the central nervous system. Lundbeck Canada Inc.
(Lundbeck Canada) is the
Canadian subsidiary of H. Lundbeck, which is the owner of Canadian patent no.
1,334,452 entitled Enantiomers of Citalopram and Derivatives Thereof
granted on September 9, 1997 (the ‘452 patent).
[2]
With
the consent of H. Lundbeck, the ‘452 patent was placed on the patent register
by Health Canada. Lundbeck Canada and H.
Lundbeck (collectively Lundbeck) are now seeking a protective order in this proceeding
which was commenced pursuant to the Patented Medicines (Notice of
Compliance) Regulations, SOR/93-133 (the NOC Regulations).
[3]
Genpharm
Inc. (Genpharm) is a Canadian generic pharmaceutical company that is a member
of the Merck Generic Group. Genpharm has filed with the Minister of Health (the
Minister) an Abbreviated New Drug Submission (ANDS) for the issuance of a Notice
of Compliance (NOC) for the medicinal ingredient escitalopram (oxalate) in
tablet form for oral administration in each of 5 mg, 10 mg, 15 mg and 20 mg
strengths (the Genpharm Products). The ANDS compares the Genpharm products
with, or makes reference to, the drug CIPRALEX® for which NOCs have been issued
to Lundbeck Canada. The Notice
of Allegation and Detailed Statement (NOA) served by Genpharm alleges that the
‘452 patent is invalid.
[4]
In
the United Kingdom, Generics UK Ltd. (Generics UK) instituted proceedings
against H. Lundbeck to have the patent corresponding to the ‘452 patent
declared invalid. In Australia, Alphapharm PTY Ltd. (Alphapharm), also owned by
the Merck Generics Group, instituted proceedings against H. Lundbeck and
Lundbeck Australia PTY Ltd. to have the patent corresponding to the ‘452 patent
declared invalid. Confidentiality agreements have been executed by the parties
involved in the UK and Australian proceedings.
[5]
The
general principle that the courts and their process should be open to public
scrutiny, including the principle of public access to court documents, is
fundamental to our system of justice. Accordingly, a protective order should
only be granted when it is necessary to prevent a serious risk to an important
interest, including a commercial interest, in the context of litigation,
because reasonable alternative measures will not prevent the risk: Sierra
Club of Canada v. Canada (Minister of Finance), [2002] 2
S.C.R. 522 at para. 53.
[6]
Protective
orders are commonly requested, and granted, in proceedings under the NOC
Regulations. In endorsing the principle that confidential orders can issue in
proceedings under the NOC Regulations and in crafting their terms on an ad
hoc basis so as to restrict their application to what is strictly necessary
in any given case, this Court has attempted to strike a balance between the
need for public scrutiny of the court process and the interests of justice
between the parties, including the bona fide proprietary and commercial
interests of the parties (see: AB Hassle v. Canada (Minister of National
Health and Welfare) (2000), 5 C.P.R. (4th) 149 at para. 6
(F.C.A.) (AB Hassle)).
[7]
It
is a sufficient demonstration of the need for a confidentiality order if the
moving party believes that its proprietary, commercial and scientific interests
would be seriously harmed (Apotex Inc. v. Wellcome Foundation Ltd.
(1993), 51 C.P.R. (3d) 305 at 311 (F.C.T.D.) (Wellcome Foundation)).
Protective orders are often granted on consent. As Justice Roger Hughes stated in Merck
& Co. v. Brantford Chemicals Inc. (2005), 43 C.P.R. (4th)
233 (F.C.), at paragraph 8, “[i]t is only when the parties disagree that this
Court is asked to provide its view as to an appropriate form of order”.
[8]
In
its NOA, Genpharm agreed that were a proceeding to be commenced in response to
the NOA, it would produce the relevant portions of its ANDS subject to the
terms and conditions of an appropriate confidentiality agreement, an issue
which is not contentious in the present proceeding. Lundbeck also expects to
file documents already disclosed during the course of the UK and/or
Australian proceedings, as well as documents and information which have not
been disclosed. Based on the present evidentiary record, I am satisfied that
these various documents include scientific information that is confidential and
proprietary, as well as commercial and financial information that need to be
protected from public disclosure.
[9]
The
only contentious issue is to whom the information described by Lundbeck as being
confidential ought to be divulged for the purposes of the present proceeding.
[10]
First,
with respect to the filing of documents already disclosed during the course of
the UK and/or Australian proceedings, Lundbeck simply requests that those
documents be afforded the same protection as that given to them in the UK and/or Australia. This is
certainly a valid consideration for the issuance of a protective order, which does
not need to be perfectly reciprocal as between the parties in every respect (Rivard
Instruments Inc. v. Ideal Instruments, 2006 FC 1338 at para. 51 (Rivard
Instruments)). Pursuant to the terms of the Lundbeck draft order, such
confidential information may nevertheless be divulged to a number of
“designated persons”, which include Genpharm, the outside counsel for Genpharm,
namely Osler Hoskin & Harcourt LLP (Osler), litigation contractors retained
by Osler, up to seven individuals retained as outside experts by Genpharm, three
employees of Generics, namely Howard Rosenberg, Paul Jenkins, and Shazia Khan,
and outside counsel for Generics, namely the UK law firm of Taylor Wessing
(Taylor).
[11]
Second,
the Lundbeck draft order creates a category of “restricted confidential information”
that includes all information that has not been disclosed in parallel
proceedings in other jurisdictions. Lundbeck proposes that such information only
be divulged to the “designated persons” mentioned above, but which will exclude
Genpharm, Generics and Taylor.
[12]
According
to the evidence on record, Peter Eustace, Senior Patent Officer of Genpharm,
has primary responsibility for instructing Osler in this proceeding. Peter
Eustace in turn reports to, and receives instructions from, Howard Rosenberg,
an employee of Generics, and Group IP and API Strategy Director for the Merck
Generics Group as a whole. Mr. Rosenberg has overall responsibility for
managing the intellectual property litigation of Merck Generics Group,
including this proceeding. Paul Jenkins, Group Manager – Patent and IP
Strategy, and Shazia Khan, Patent Officer, are also employees of Generics, and
work with Mr. Rosenberg on various proceedings involving members of the Merck
Generics Group, including proceedings involving escitalopram.
[13]
Genpharm
takes issue with the above category of “restricted confidential information”. It
submits that Genpharm, Generics and Taylor should be allowed to
instruct Osler in this proceeding. Moreover, employees of Generics should have
access to confidential information, provided that proper undertakings to
utilize the confidential information solely for the purpose of the
present litigation are executed by the concerned individuals. Counsel submits
that Genpharm, Generics and Taylor are sophisticated parties, accustomed to
dealing with confidential information. Moreover, any such information should
not be limited to the three employees of Generics designated in the draft
Lundbeck order.
[14]
“Counsel’s
eyes only” protective orders are not uncommon, but they are not granted by this
Court in the exercise of its discretion as a matter of convenience. It has been
stated in a number of decisions that such an order should only be granted in
“unusual circumstances” (see Merck & Co. v. Apotex Inc. (2004), 32
C.P.R. 203 (F.C.) at para 8; Pfizer Canada Inc. v. Novopharm Ltd.
(1996), 70 C.P.R. (3d) 176 at 179 (F.C.T.D.) (Pfizer); Zeneca
Pharma Inc. v. Minister of National Health and Welfare (1994), 55 C.P.R.
(3d) 1 at 6 (F.C.T.D.), Merck & Co. v. Brantford Chemicals Inc. (2005),
43 C.P.R. (4th) 233 (F.C.); Pharmascience Inc. v. Glaxosmithkline
Inc., 2007 FC 360 at para. 5 (Pharmascience)). There is no
definition as to what constitutes “unusual circumstances”. Each case turns on
its own merits, bearing in mind that protective orders are in nature
interlocutory and can be varied by the Court.
[15]
In
Wellcome Foundation, above, at page 311, Justice Andrew MacKay took into
account three considerations: the existence of a similar order granted upon
consent in parallel litigation elsewhere; the possibility for a party to object
to a designation of confidentiality and the Court’s power to control the
“declassification” process; and a party’s belief that its commercial business
or scientific interest associated with trade secrets might be seriously harmed
by disclosure. These considerations were also applied in other decisions of this
Court also dealing with requests for “counsel’s eyes only” provisions (see Pfizer,
above, at 180-181; Merck & Co. v. Apotex Inc. (2004), 32 C.P.R. (4th)
203 at paras. 8-10).
[16]
However,
Justice MacKay did not purport to set out a series of criteria to be examined
and followed in every instance (Pharmascience, above, at para. 5)
and the Court may see fit to consider and apply other relevant factors in
addition or in substitution to the considerations mentioned in the Wellcome
Foundation case. Indeed, where the parties themselves are competitors,
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 interests of the other party
(Rivard Instruments, above, at para. 40). That being said, these
considerations apply in this case which also involves the particular or special
features addressed below.
[17]
First,
I note that the confidentiality agreement executed in relation to the UK proceeding
does not contain “counsel’s eyes” provisions. However, the confidentiality
agreement executed in relation to the Australian proceeding was subsequently
modified by the Australian Court to include one lawyer of Alphapharm,
giving him access only to certain particular documents. That being said, I
doubt the impugned provisions of the Lundbeck draft order qualify as “counsel’s
eyes only” since outside experts are not excluded. In any event, based on the
evidence on record, I find that Lundbeck has met the initial burden of proving
that a protective order containing “counsel’s eyes only” provisions in the case
of undisclosed “restricted confidential information”, should issue.
[18]
Second,
the Lundbeck draft order ensures that the sensitive confidential information of
the parties will not be disclosed or made use of for any other purpose than
this application, and at this stage, based on the present evidence, I am
satisfied that Genpharm, who is represented by outside counsel, namely Osler,
will be able to prepare its case, further considering that the Lundbeck draft
order provides that up to seven individuals not employed by Genpharm may be
retained as outside experts. The bald assertion that Osler will need to send or
to show the “restricted confidential information” to Genpharm, Generics and/or Taylor in order to
get instructions is not persuasive.
[19]
Third,
I am satisfied that the disclosure of the “confidential information” and
“restricted confidential information” would create potential harm if divulged
to persons other than the “designated persons” in the Lundbeck draft order. I
accept that such confidential information is valuable to any competitor seeking
to fine-tune a process for the production of escitalopram. Such competitor may
gain a competitive advantage in knowing the sales and marketing strategy of
Lundbeck. If disclosure of these undisclosed documents to Genpharm, Genpharm
and/or Taylor were permitted, valuable commercial information helpful to these
companies would come to be known by their employees who may unwittingly and
unintentionally misuse that information at some future time in a fashion
undetectable by Lundbeck and in respect or which there could be no adequate
remedy.
[20]
Fourth,
the parties themselves may challenge the true confidentiality of specific
documents by the very terms of the Lundbeck draft order and this Court will
always be prepared to hear challenge by a third party, such as Generics,
whether or not the terms of the order so provide (AB Hassle, above, at
para. 7).
[21]
Fifth,
Generics is not a party to this proceeding, and Taylor is not
counsel on record of Genpharm. While the terms of the proposed undertakings appear
to have worldwide application, it is difficult to determine to what extent this
Court can ensure that they are complied with and enforced outside Canada (Pro
Swing Inc. v. Elta Golf Inc., 2006 SCC 52). It must be remembered that the
failure to respect an order of this Court may lead to contempt proceedings. When
a person is found guilty of contempt, imprisonment may be ordered by this Court.
The difficulties with respect to the actual enforcement of the protective order
outside Canada forces this
Court to be very prudent at this point in time.
[22]
Sixth,
nothing prevents Genpharm or any interested party from seeking in the future,
in the case of certain identifiable confidential documents, more permissible
conditions of disclosure on the basis of specific allegations supported by
proper evidentiary material and reasonably enforceable conditions outside Canada, as the case
may be.
[23]
In
conclusion, having read the parties’ respective draft orders and considered the
evidence on record, as well as all relevant factors, I have decided to allow
the present motion and issue a protective order in the form set out in the Lundbeck
draft order (tab 2 of the motion record filed on behalf of Lundbeck). Costs
associated with the present motion shall be in the cause.
ORDER
THE COURT ORDERS that:
- The motion is
allowed and a protective order in the form set out in the Lundbeck draft order,
which is annexed as Schedule A, shall issue.
- Costs associated
with the present motion shall be in the cause.
“Luc Martineau”
Ottawa, Ontario
April 19, 2007
SCHEDULE A
No. T-372-07
FEDERAL COURT
LUNDBECK CANADA INC.
Applicant
-AND-
THE MINISTER OF HEALTH
-and-
GENPHARM INC.
Respondents
-AND-
H. LUNDBECK A/S
WHEREAS
documents, information and things may be sought, produced or exhibited by and
among the parties to this action, which materials relate to trade secrets or
other confidential research, development, commercial or financial information.
WHEREAS
it is in the interest of facilitating the just, speedy and inexpensive
determination of this action to protect the legitimate interests of the parties
in maintaining the confidentiality of certain confidential or proprietary
information that may be disclosed.
IT IS HEREBY ORDERED THAT:
1.
In this Protective Order (the “Order”), the
Applicant, the Respondents and the Respondent/Patentee are referred to in the
singular as a “Party” and collectively as the “Parties”.
2.
“Confidential Information” shall mean any
document, thing, evidence, or other form of information stored in any form of
media (including computers) designated by either Party as confidential in
accordance with the procedure described herein and may include any documents,
things, information or evidence produced or disclosed, as the case may be, on
any Examination, motion, hearing, or pursuant to any provision of the Federal
Court Rules.
3.
“Confidential Information” means information of
a non-public and confidential or proprietary nature, whether personal or
business related, relating to the subject matter:
3.1
Information of Genpharm Inc. (“Genpharm”) and
its affiliated or related companies, or of Genpharm’s raw material supplier,
relating to the supply, manufacture, formulation or use of Genpharm’s
escitalopram tablets or any raw material used therein, which information is
reflective of the product that Genpharm intends to sell if a Notice of Compliance
is issued with respect to the submission referred to in its letter to Lundbeck
Canada Inc. dated January 23, 2007, or information relating to confidential
scientific data pertaining to the subject matter of this proceeding;
3.2
Information of H. Lundbeck A/S (“H. Lundbeck”),
Lundbeck Canada Inc. (“Lundbeck Canada”) and their affiliated or related
companies which was disclosed to outside counsel for Generics (UK) Ltd.
(“Generics”), namely Taylor Wessing, and to three employees of Generics, namely
Howard Rosenberg, Paul Jenkins and Shazia Khan under cover of confidentiality
agreements, during the course of proceedings in the UK in Court file no. HC 05
CO 3689. This information is comprised principally of the internal documents
of H. Lundbeck’s chemistry department which refer to or relate to the
development of escitalopram, of the documents containing financial and
commercial information pertaining to the efforts and investments made with
respect to escitalopram and to the commercial success of that product.
4.
“Restricted Confidential Information” means
information of a non-public and confidential or proprietary nature, whether
personal or business related, which has not been disclosed to the individuals
mentioned above during the course of the same UK proceedings or otherwise, and include:
4.1
Internal documents of Lundbeck Canada and H. Lundbeck which refer to or
relate to the development of escitalopram.
4.2
Financial and commercial information of Lundbeck
Canada, H. Lundbeck and their
related companies pertaining to the efforts and investments made with respect
to escitalopram as well as to the commercial success of that product.
4.3
The new drug submission of Lundbeck Canada and all documents and correspondence
relating thereto.
5.
Confidential Information and Restricted Confidential
Information shall not include:
5.1
Information which was lawfully and without legal
restriction in the possession of an individual or Party other than through
disclosure in this proceeding pursuant to this Order;
5.2
Information derived independently of disclosure
in this proceeding;
5.3
Information which any individual or Party or its
counsel lawfully and without legal restriction obtained from a person having
the right to disclose such information; or
5.4
Information which is or becomes part of the
public domain not as a result of any unauthorized act, or omission, on the part
of a recipient of Confidential Information or Restricted Confidential
Information pursuant to this Order.
6.
In the case of Confidential Information,
the “Designated Persons” are the following:
6.1
The Court, Court personnel, stenographic and
video reporters engaged in the within proceeding;
6.2
Individuals employed by the Applicant, Lundbeck
Canada Inc., and by the Respondent/Patentee, H. Lundbeck A/S, and Lundbeck’s
related companies who need to receive the designated Confidential Information
for the purpose of this proceeding;
6.3
Individuals employed by the Respondent Genpharm
Inc. who need to receive the Confidential Information for the purpose of this
proceeding;
6.4
Three employees of Generics, namely Howard
Rosenberg, Paul Jenkins and Shazia Khan;
6.5
Up to seven (7) individuals not employed by any
Party and who may be retained by the Applicant and Respondent / Patentee as
outside experts;
6.6
Up to seven (7) individuals not employed by any
Party and who may be retained by each of Genpharm and the Minister of Health as
outside experts;
6.7
Outside counsel for the Respondent, Genpharm,
namely Osler, Hoskin & Harcourt LLP, and the respective employees of Osler,
Hoskin & Harcourt LLP who need to receive the designated Confidential
Information for the purpose of this proceeding;
6.8
Outside counsel for Generics (UK) Ltd., namely
Taylor Wessing, and the respective employees of Taylor Wessing who need to
receive the Confidential Information for the purpose of this proceeding;
6.9
Outside counsel for the Applicant and
Respondent/Patentee, namely Fasken Martineau DuMoulin LLP, and Goudreau Gage
Dubuc, and the respective employees of Fasken Martineau DuMoulin LLP and
Goudreau Gage Dubuc who need to receive the designated Confidential Information
for the purpose of this proceeding;
6.10
The Minister of Health and its counsel, the
Department of Justice and their respective employees;
6.11
Litigation service contractors retained by
Osler, Hoskin & Harcourt LLP, Fasken Martineau DuMoulin LLP or Goudreau
Gage Dubuc (such as copy services or third parties to assist with the
management of documents relating to this proceeding); and
6.12
Such other persons as the Parties may agree to
in writing or as the Court may order.
7.
In the case of Restricted Confidential
Information, the “Designated Persons” shall not include Genpharm, Generics
or Taylor Wessing.
8.
“Document” refers to a document as defined in
Rule 222(1) of the Federal Courts Rule.
9.
“Examination” refers to an examination as
defined in Rule 87 of the Federal Courts Rule.
10.
“Legend” refers to the following marking or
label:
“CONFIDENTIAL INFORMATION OF [Party] or RESTRICTED CONFIDENTIAL INFORMATION OF [Party]: Subject to Protective Order dated
_______ in Court File No. T-372-07”.
11.
This Order shall apply to any confidential
information produced or disclosed by or on behalf of either Party in relation
to this proceeding which is designated by that Party as Confidential
Information or Restricted Confidential Information in accordance with the
procedure described herein.
12.
A Party, who reasonably believes it will be
disclosing or has disclosed confidential information, shall have the right,
through its counsel, to designate such information as “Confidential
Information” or “Restricted Confidential Information” pursuant to this Order in
which event such information shall thereafter be governed by the terms of this
Order, subject to the right of the non-producing Party to challenge the
designation (hereinafter “Challenged Information”).
13.
A designation of Confidential Information or
Restricted Confidential Information shall be made in good faith by the
designating Party. The inadvertent failure to make the designation before
disclosure does not constitute a waiver of the right to make the designation. A
producing Party may designate Confidential Information or Restricted
Confidential Information after disclosure has been made.
14.
All documents, exhibits and things that are
designated as Confidential Information or Restricted Confidential Information
shall be marked on each page or prominent visible surface with the Legend.
15.
Any Confidential Information or Restricted
Confidential Information that is submitted to this Court in this proceeding for
any reason, either voluntarily or pursuant to an Order, shall be segregated
from other information and documentation being submitted and shall be submitted
to the Court in sealed envelopes identifying this proceeding and prominently
marked with the following:
CONFIDENTIAL INFORMATION (or RESTRICTED CONFIDENTIAL INFORMATION)
Pursuant to the Court Order herein, this envelope
shall remain sealed in the Court files and shall not be opened except in
accordance with the terms of said order or upon order of the Court and all such
sealed envelopes shall not be opened except by the Court and its staff.
16.
At any examination, cross-examination or other
proceeding before a Court Reporter in this proceeding, where evidence is given
or documents are produced which are designated by a Party to be Confidential
Information or Restricted Confidential Information, the reporter shall omit
such evidence and documents from the transcript and transcribe them separately
as a “Confidential Transcript” which shall be placed by the reporter in a
sealed envelope marked as described in paragraph 10 above. The reporter shall
in the normal course send copies of the “Confidential Transcript” to counsel
for all Parties in this proceeding, and such copies shall thereafter be treated
as Confidential Information or Restricted Confidential Information subject to
this Order.
17.
All Confidential Information or Restricted
Confidential Information shall be kept confidential in the custody of outside
counsel for the Parties and shall not be disclosed by outside counsel for the
Parties to anyone except in accordance with the terms of this Order.
18.
With respect to Examinations, only Designated
Persons shall be permitted to attend that portion of any Examination which
relates to or involves Confidential Information or Restricted Confidential
Information.
19.
Subject to the terms of this Order, and unless
this Court orders otherwise, or the Party disclosing Confidential Information
or Restricted Confidential Information provides its consent in writing:
19.1
Access to, disclosure of, and discussions
concerning Confidential Information or Restricted Confidential Information
shall be limited only to the Designated Persons;
19.2
Designated Persons shall not disclose or use
Confidential Information or Restricted Confidential Information except in
accordance with this Order; and
19.3
Confidential Information or Restricted
Confidential Information shall be used solely for the purpose of the within
proceeding and may not be used for any purpose whatsoever other than for the
purpose of the within proceeding, except with leave of the Court.
20.
Prior to the disclosure of Confidential
Information or Restricted Confidential Information to the persons referred to
in paragraphs 6.4, 6.5, 6.6, 6.8, 6.11 and 6.12 hereof, counsel responsible for
making such disclosure shall furnish the intended recipient with a copy of this
Protective Order and shall obtain from the intended recipient an
acknowledgement in writing that the intended recipient has read this Protective
Order, understands it, agrees to be bound by it and expressly consents to the
jurisdiction of the Court in connection with any proceeding or hearing relating
to the Confidential Information or Restricted Confidential Information and the
terms of this Protective Order. Counsel shall retain a copy of the written
acknowledgement, but need not provide a copy of it to other counsel except upon
order of the Court.
UNDERTAKING
I, _______________, hereby acknowledge that I am about
to receive from _________ Confidential Information (or Restricted Confidential
Information) as defined in the Protective Order of ______________ (“Confidential
Information” or “Restricted Confidential Information”).
I certify my understanding that this Confidential
Information (or Restricted Confidential Information) is being produced to me
pursuant to the terms and restrictions of the Protective Order of __________ in
the above-captioned matter (“Order”), and that I have been given a copy of and
have read and understood my obligations under that Order. I hereby agree to be
bound by the terms of the Order. I agree to utilize the Confidential
Information (or Restricted Confidential Information) solely for the purposes of
this litigation. I clearly understand that the Confidential Information (or
Restricted Confidential Information) and my copies or notes relating thereto
shall not be disclosed to or discussed with anyone not similarly bound by the
Order.
On request of counsel for the party who provided me
with the confidential materials, I will return to said counsel or destroy, all
materials containing Confidential Information (or Restricted Confidential Information),
copies thereof and notes that I have prepared relating thereto.
I hereby submit to the jurisdiction of the Federal
Court of Canada for the purpose of enforcement of the Order and waive any and
all objections to jurisdiction and venue.
Signature
21.
Where one of the Parties is in receipt of
Confidential Information or Restricted Confidential Information and seeks to
tender to the Court or to the other Party a document or other thing containing
or commenting upon or in any way referring to the Confidential Information or
Restricted Confidential Information, that Party shall designate the portion of
the document or other thing as confidential and shall treat same as containing
Confidential Information or Restricted Confidential Information in accordance
with the terms of this Order.
22.
Upon termination of this proceeding and all
appeals related to this proceeding (or upon expiry of the time for commencing
an appeal, or seeking leave to appeal), all copies of Confidential Information
or Restricted Confidential Information in the possession of the non-producing
Party shall, upon request, be destroyed within 60 days, except for one copy
maintained by outside counsel.
23.
Nothing in this Order shall:
23.1
Affect any implied undertaking;
23.2
In any way restrict the use of Confidential
Information or Restricted Confidential Information by the Party disclosing this
information or its solicitors;
23.3
Limit any of the Parties from asserting that any
information designated confidential pursuant to this Order is in fact not
confidential;
23.4
Foreclose or limit a Party from seeking an
adjudication of the confidential character of any Challenged Information;
23.5
Foreclose or limit a Party from opposing the
production of any documents or the answering of any questions on any proper
grounds whatsoever (including relevance and privilege); or
23.6
Restrict in any way the use or disclosure of
Confidential Information or Restricted Confidential Information by the Party of
its own information, including a Party’s use of Confidential Transcripts of
examinations of that Party’s own witness.
24.
Any Party may waive in writing all or any part
of its right over its Confidential Information or Restricted Confidential
Information under this Order.
25.
Any Party shall also have the right to apply to
the Court for any modification or variation of the restrictions on disclosure
imposed by any term of this Order as applied to any specific item or items of
Confidential Information or Restricted Confidential Information.
26.
The termination of this proceeding, and all
appeals related to this proceeding, shall not relieve any person to whom
Confidential Information or Restricted Confidential Information was disclosed
pursuant to this Order from the obligation of maintaining the confidentiality
of such information in accordance with the provisions of this Order. The
provisions of this Order shall continue after the final disposition of these
proceedings and this Court shall retain jurisdiction to deal with any issues
relating to this Order, including, without limitation, its enforcement.
27.
The terms and conditions of the use of
Confidential Information or Restricted Confidential Information and the
maintenance of the confidentiality thereof during any hearing of this
proceeding shall be matters in the discretion of the Court seized of this matter.
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