Confidentiality In The Litigation Process: The Implied Undertaking, Confidentiality And Sealing Orders

1. Introduction

   This article addresses the confidentiality of material disclosed in the course of legal proceedings in the Supreme Court of British Columbia. It is primarily concerned with the scope and effect of the obligation of confidentiality of discovery material received from the other parties to the litigation – the "implied undertaking" rule. The paper also briefly discusses how that protection can be augmented by express confidentiality agreements and orders; and applications to seal the Court record, or parts of it.

   After a ten year period between 1985 and 1995 in which the onus was placed upon a party giving discovery to apply for a confidentiality order in order to protect itself against its production being used for some other purpose, a five member panel of the Court of Appeal made it clear in Hunt v. T&N1 that an enforceable obligation of confidentiality attaches to discovery materials and it is the party obtaining discovery that requires the owner's permission or the Court's leave in order to use them for any purpose other than discovery in the litigation in which the production was made.

   The Court stated:

   Keeping in mind that pre-trial proceedings are generally private, and that "papers are often the dearest property a man can have", per Entinck v. Carrington (1765), 95 E.R. 807 at 818, we have no doubt that, prima facie, a party obtaining production of documents is under a general obligation, in most cases, to keep such documents confidential, whether or not they disclose private or confidential material.

   As is clear from Hunt,2 while the case law and practice employ the term "implied undertaking" the obligation is an obligation that is imposed by law. It is imposed upon both the parties and their representatives. It continues in effect after the case is over.3

   Accordingly, the responsibilities of counsel with regards to discovery extend not only to ensuring proper production by the client but also that the client understand the obligations of confidentiality that adhere to the discovery it receives. Furthermore the obligation extends directly to counsel and any other person that receives the production, such as an insurer.4

   Breach of this obligation can have serious consequences for both counsel and client, as any improper use of the documents is a contempt of court.

   While the existence of the implied undertaking is well known, and the general aspects of the rule are easy to state, more nuanced issues can arise in...