Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358

Alphapharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358

The Lundbecks did not discharge the onus of justifying their blanket Confidential – External Counsel Only designation against inspection by Dr Traugott. The Court took into account that Dr Traugott was Alphapharm's general legal counsel, a solicitor with an unrestricted practising certificate, that the documents in at least one proceeding were old, and that applications for marketing approval for goods containing escitalopram oxalate had already been made by Merck group companies in other jurisdictions. Although Dr Traugott might learn information he could not forget, given his Australian location and focus it would probably require a deliberate effort for him to use that information to...

Jurisdiction
Australia
Judgment Date
29 September 2006
Procedural Posture
Motions in Patent Revocation/infringement and Therapeutic Goods Act Proceedings Concerning Inspection of Discovered Documents / Interlocutory Motions for Inspection of Discovered Documents Designated Confidential – External Counsel Only
Outcome
Alphapharm's motions were allowed generally; disclosure to Dr Frank Traugott was permitted subject to an undertaking, delayed until Friday 13 October 2006, with leave for applications to exclude particular documents, and costs ordered against the Lundbeck parties.
Legal Topics
['inspection of Discovered Documents' 'confidentiality' 'external Counsel Only Designation' 'internal Counsel Access to Discovered Documents' 'onus of Proof' 'undertakings']
['practice and Procedure' 'intellectual Property' 'patent Law' 'therapeutic Goods Regulation'] ['inspection of Discovered Documents' 'confidentiality' 'external Counsel Only Designation' 'internal Counsel Access to Discovered Documents' 'onus of Proof' 'undertakings']

Case Brief

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Procedural Posture

Motions in Patent Revocation/infringement and Therapeutic Goods Act Proceedings Concerning Inspection of Discovered Documents / Interlocutory Motions for Inspection of Discovered Documents Designated Confidential – External Counsel Only

Legal Issues

  1. 1 ["Whether documents discovered by the Lundbecks and designated Confidential – External Counsel Only should be made available for inspection by Alphapharm's internal general counsel, Dr Frank Traugott." 'Whether the Lundbecks established that the documents should be withheld from inspection by internal counsel as a class.' 'Whether leave should be reserved for applications concerning particular documents.']

Ratio Decidendi

The Lundbecks did not discharge the onus of justifying their blanket Confidential – External Counsel Only designation against inspection by Dr Traugott. The Court took into account that Dr Traugott was Alphapharm's general legal counsel, a solicitor with an unrestricted practising certificate, that the documents in at least one proceeding were old, and that applications for marketing approval for goods containing escitalopram oxalate had already been made by Merck group companies in other jurisdictions. Although Dr Traugott might learn information he could not forget, given his Australian location and focus it would probably require a deliberate effort for him to use that information to...

Court Disposition

Alphapharm's motions were allowed generally; disclosure to Dr Frank Traugott was permitted subject to an undertaking, delayed until Friday 13 October 2006, with leave for applications to exclude particular documents, and costs ordered against the Lundbeck parties.

Orders

  • ['In NSD 1120 of 2005, the solicitors for Alphapharm are entitled to disclose documents discovered and designated Confidential – External Counsel Only by H Lundbeck A/S and Lundbeck Australia Pty Ltd to Dr Frank Traugott, subject to his first giving an undertaking in suitable form.' 'In NSD 1120 of 2005, disclosure...