Docket: T-259-14
Citation:
2015 FC 798
Ottawa, Ontario, June 26, 2015
PRESENT: CASE MANAGEMENT JUDGE MIREILLE TABIB
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BETWEEN:
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SHIRE CANADA
INC.
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Applicant
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and
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PHARMASCIENCE
INC. AND THE MINISTER OF HEALTH
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Respondents
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and
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SHIRE LLC
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Respondent Patentee
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ORDER AND REASONS
[1]
Pharmascience Inc., with the consent of the
other parties to this application under the Patented Medicines (Notice of
Compliance) Regulations SOR/93-133, makes this motion for an order allowing
it to file under confidential seal sales data which it purchased from IMS
Health Incorporated for the specific and declared purpose of use in this
application.
[2]
The evidence before me shows that IMS makes it
its business to gather, compile and sell pharmaceutical and healthcare information
as to pharmaceutical sales data, prescription data, medical claims data and
other related data. It sells reports and analysis as to the pharmaceutical
markets in, inter alia, Canada and the US. Its customers and subscribers
include pharmaceutical companies, both brand and generics. Customers use IMS’s
services and products for business planning purposes, but also for litigation
purposes. In addition to regular subscription reports, IMS can and does accept
commissions to compile and analyse data as to specific market segments in
specific time frames.
[3]
In the present case, IMS entered into a contract
with Pharmascience to compile and sell to it information specifically and
exclusively for use in this litigation. The contract between IMS and Pharmascience
provides that Pharmascience may only use the information in the application if
it “request the court to permit presentation of such
material” in a manner “appropriate to maintain
the confidentiality of the Data”. It appears that Pharmascience has already
included the data it has obtained from IMS in an affidavit it has served on its
opponent pursuant to Rule 307 of the Federal Courts Rules. Pursuant to
the Rules, Pharmascience is now obliged to file this affidavit into court.
Pharmascience has designated the IMS data as confidential pursuant to a
Protective Order issued by the Court, but that Protective Order only governs
the manner in which parties deal with information they exchange between
themselves. It does not allow them to file materials under seal without first applying
for and obtaining a specific confidentiality order pursuant to Rule 151 of the
Rules. Having deliberately sought out and purchased information and bound
itself to keeping it confidential without first ensuring that it would be permitted
to file it confidentially, Pharmascience now comes to the court and argues that
preserving its ability to respect a freely given undertaking of confidentiality
is an important interest that outweighs the fundamental principle of open and
accessible court proceedings, and preserving IMS’s ability to rely on such
undertakings in order to be able to offer a for profit service also represents
an important interest that should outweigh the principles of open and
accessible court proceedings. Pharmascience’s motion is ill-founded in fact and
in law, and is dismissed.
[4]
The criteria for granting a confidentiality
order pursuant to Rule 151 were set out by the Supreme Court in Sierra Club
of Canada v. Canada (Minister of Finance) 2002 SCC 41.
[5]
The first requirement, of course, is that the
information be, in fact, “of a “confidential nature” in
that it has been “accumulated with a reasonable expectation of it being kept
confidential” as opposed to “facts which a litigant would like to keep
confidential by having the courtroom doors closed”” (Sierra Club, above,
at para.60. See also, Takeda Canada Inc et al. v Minister of Health and
Mylan Pharmaceutical ULC 2014 FC 1076 at para. 15.).
[6]
I am not satisfied that Pharmascience has
established this basic requirement. As stated in Sierra Club, “One of the underlying principles of the judicial process is
public openness, both in the proceedings of the dispute, and in the material
that is relevant to its resolution”. Both IMS and Pharmascience should
know that, and should know that confidentiality orders are discretionary and
not issued merely for the asking. The confidentiality agreement entered into
between IMS and Pharmascience does not prohibit Pharmascience from filing the
information in court without a confidentiality order. All it does is require
Pharmascience to “request the court to permit
presentation of such material [in such a manner as to maintain the
confidentiality of the data]”. The contract does not require
Pharmascience to forego filing the material in open court if its request is
dismissed by the Court. Given that Pharmascience’s obligations under the
contract appear to be satisfied merely by seeking permission, with no guarantee
that it will be granted, I am not persuaded that IMS and Pharmascience, who are
sophisticated corporations entering into a contract for the provision of
information for the specific purpose of being used in litigation, can have had
a reasonable expectation that the information would remain confidential. On
that basis alone, Pharmascience’s motion must fail.
[7]
The test in Sierra Club also requires the
moving party to establish that there is a serious risk of harm to an important
interest, and that the risk in question must be real and substantial, well
grounded in the evidence (Sierra Club, above, at para. 54). The evidence
before me does not establish the IMS or Pharmascience would risk serious harm
if the data were disclosed.
[8]
According to Pharmascience’s written
representations, the harm that would be suffered if the data were made public would
be to IMS itself, and resides in the fact that the data would become available
to other clients and competitors of IMS without compensation. On the evidence
before me, IMS charged Pharmascience $6,900.00 for the provision of the data.
There is no indication whatsoever that IMS would not have been willing to sell
the very same information for the very same fee to any person willing to pay
that fee. Because the data was tailored to a specific request, there is no
evidence of how many customers would have been willing to pay for that
information, but on the face of it, any sales lost to IMS from the disclosure
of this set of data cannot be considered serious by any stretch of the
imagination.
[9]
Even if I were to consider the loss of
confidentiality of this limited set of data as erosive of IMS’s general ability
to rely on the confidentiality of other commissioned reports, the evidence
before me would still not support a finding that this constitutes an important
interest, as defined in Sierra Club, at para.55:
In order to
qualify as an “important
commercial interest”, the interest in question
cannot merely be specific to the party requesting the order; the interest must
be one which can be expressed in terms of a public interest in confidentiality.
For example, a private company could not argue simply that the existence of a
particular contract should not be made public because to do so would cause the
company to lose business, thus harming its commercial interests.
[10]
There is no evidence that IMS would have refused
to sell the information to Pharmascience without the confidentiality
undertaking. Nor is there any evidence that Pharmascience could not have
obtained the information from another source without giving a confidentiality
undertaking. No evidence been led as to any harm that might be caused to IMS
if, by reason of the court’s refusal to issue a confidentiality order in this
matter, IMS were to refrain in future from selling information for use in
litigation or, more broadly, what important interest would be harmed if IMS or
its competitors decided that they could not profitably sell data for use in
litigation without guarantees of confidentiality.
[11]
Pharmascience has alluded to the preservation of
its contractual obligation of confidentiality as an interest that may be harmed
if a confidentiality order is not issued. As mentioned above, Pharmascience is
not at risk of breaching a confidentiality agreement. It has already complied
with such obligations as it had by making the motion.
[12]
Even if Pharmascience’s use of the data without
a confidentiality order was in breach of the agreement, I would not have
considered Pharmascience’s ability to uphold the agreement an interest worthy
of protection in the particular circumstances of this case. The Supreme Court
in Sierra Club did recognize a breach of a confidentiality agreement as
harm to a commercial interest that “can be
characterized more broadly as the general commercial interest of preserving
confidential information”. However, the confidentiality agreement in
that case pre-existed the litigation. Here, IMS chose to sell “confidential”
information for use in a public forum and Pharmascience chose to bind itself to
a confidentiality agreement with full knowledge that their agreement runs
contrary to the very intent and purpose for which information is sought and
provided. As mentioned above, although Pharmascience baldly asserts that it was
“required” to agree to the confidentiality provision, there is no evidence to
support that assertion. The Court sees no wider public interest in protecting Pharmascience’s
ability to uphold an agreement of confidentiality it has not shown was
necessary and into which it entered in defiance of the principles of open and
accessible court proceedings.
[13]
Similarly, IMS asserts that there is a wider
public interest in preserving the confidentiality of the data, because
disclosure would harm its competitive position against other purveyors of
market data. The Court sees no wider public interest in preserving a
competitive position in a business model that relies on selling information to
be used as evidence in open court, where the value of the service is premised
on the seller’s ability to erect a confidential barrier around what should be
public. If IMS or its competitors do not wish the information they sell to be
used for litigation in a public court of law, they can simply choose not to
sell it for that purpose. If pharmaceutical corporations wish to use data they
purchase for use in court, they should seek it from sellers who will not
require them to keep it confidential.
[14]
Finally, Pharmascience has cited one unpublished
consent order to show that this Court once granted a confidentiality order in
respect of IMS data. An endorsed order that contains no discussion or analysis of
the evidence put before the Court and does not purport to determine any issue
of law is neither binding nor persuasive authority.
[15]
In conclusion, Pharmascience has failed to meet
its burden to show that either it or IMS had a reasonable expectation that the
information would be kept confidential, to show that any commercial interest
that might be harmed by the disclosure is one that can be expressed in terms of
a public interest in maintaining confidentiality and further, that the risk of
any harm to that commercial interest is real or substantial.
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