Foster Miller Inc. v. Babcock & Wilcox Industries Ltd.

Foster Miller Inc. v. Babcock & Wilcox Industries Ltd.

The court accepted the plaintiffs' affidavit evidence that disclosure of the Schedule A licensing reports and Schedule B documents could harm plaintiffs' commercial interests and that there was precedent and a prior consent confidentiality agreement supporting protection. Balancing the open court principle and the need to protect bona fide commercial and technical secrets in pre-trial preparation, the court granted the confidentiality order: Schedule A documents are subject to Rule 152(2) and entitled to "for counsel's eyes only" protection; Schedule B documents are confidential but may be disclosed only to solicitors of record/assisting solicitors and two designated employees of the...

Citation
2002 FCT 428
Parties
Plaintiff/defendant by Counterclaim: Foster-Miller, Inc.; Plaintiff/defendant by Counterclaim: Electric Power Research Institute, Inc.; Plaintiff/defendant by Counterclaim: Foster-Miller, Canada Ltd.; Defendant/plaintiff by Counterclaim: Babcock & Wilcox Industries Ltd.; Defendant/plaintiff by Counterclaim: Babcock & Wilcox Canada Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
12 April 2002
Procedural Posture
Motion for Confidentiality/protective Order Under Rule 151 / Pre Trial Motion Hearing (confidentiality)
Outcome
Confidentiality order granted
Legal Topics
Protective Order, Confidentiality Order, Discovery, Expurgation, For Counsels Eyes Only
Source Language
English
Civil Procedure Confidentiality/protective Orders Commercial/trade Secrets Protective Order Confidentiality Order Discovery Expurgation For Counsels Eyes Only

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Parties

Foster-Miller, Inc.

Plaintiff/defendant by Counterclaim

Electric Power Research Institute, Inc.

Plaintiff/defendant by Counterclaim

Foster-Miller, Canada Ltd.

Plaintiff/defendant by Counterclaim

Babcock & Wilcox Industries Ltd.

Defendant/plaintiff by Counterclaim

Babcock & Wilcox Canada Ltd.

Defendant/plaintiff by Counterclaim

Procedural Posture

Motion for Confidentiality/protective Order Under Rule 151 / Pre Trial Motion Hearing (confidentiality)

Legal Issues

  1. 1 Whether a confidentiality/protective order should be issued under Rules 151 and 152 of the Federal Court Rules, 1998
  2. 2 Whether certain documents merit "for counsel's eyes only" protection or restricted disclosure to designated employees
  3. 3 Whether affidavit evidence establishes that disclosure would harm commercial interests and justify restrictions on disclosure to parties or the public

Ratio Decidendi

The court accepted the plaintiffs' affidavit evidence that disclosure of the Schedule A licensing reports and Schedule B documents could harm plaintiffs' commercial interests and that there was precedent and a prior consent confidentiality agreement supporting protection. Balancing the open court principle and the need to protect bona fide commercial and technical secrets in pre-trial preparation, the court granted the confidentiality order: Schedule A documents are subject to Rule 152(2) and entitled to "for counsel's eyes only" protection; Schedule B documents are confidential but may be disclosed only to solicitors of record/assisting solicitors and two designated employees of the...

Court Disposition

Confidentiality order granted

Orders

  • Confidentiality order granted in the form annexed to reasons
  • Documents listed in Schedule A subject to requirements of Rule 152(2) ("for counsel's eyes only" protection)