Protection of Confidential Information Exchanged Between Parties to a Federal Court Action

The Federal Court, through its 25 September, 2017 decision in LFOW v Soldan Fence, 2017 FC 858 in respect of a consent motion seeking a protective order, has made it clear that it is no longer prepared to deal with such requests; instead, parties should agree between themselves as to any particular restrictions to be applied to information and documents exchanged between parties through the pre-trial discovery process which, in the ordinary course, does not involve the Court and is conducted by and between the parties themselves.

At the same time, the Court took the opportunity to strongly remind all party litigants of their broad obligations to protect such information and documents in all cases and without need for any court order.  By engaging in litigation before the Court all party litigants are deemed to have provided an implied undertaking to the Court that they will not use any information or document obtained through during the discovery process for any purpose other than the purpose for which it was disclosed in the lawsuit and will treat such information and documents as confidential, excluding information and documents which a receiving party has lawfully obtained outside of the discovery process.  These broad obligations may be sufficient to serve the needs of parties in many cases.  If not, the Court will expect them to agree between themselves as to any additional obligation or restriction to apply to such information and documents, relying on the Court's resources primarily for matters of enforcement of such obligations where necessary.