The CBA’s Intellectual Property Section welcomed the opportunity to comment on the Federal Court’s Draft Report on Confidentiality Orders, offering up its own proposal for a set of six principles for establishing best practices on the protection and handling of confidential information.
The Section says it supports the establishment of a series of guidelines or a Practice Direction based on these principles:
- Parties should try to come to an out-of-court agreement on handling information they consider to be confidential. It would be beneficial, the Section says, if the court could outline specific steps the parties need to take in order for the Federal Court to have jurisdiction to enforce the agreements.
- When the proceeding is case-managed the parties may seek the assistance of the Case Management Judge, and where it is not, to bring a contested motion to address any disagreements.
- Where documents are sought to be filed confidentially with the court, a party must bring a motion for an order, even if the documents are already covered by a confidentiality agreement between the parties. And care must be taken to ensure that no documents are sealed unless an order has been filed under Rule 151.
- In case-managed proceedings, parties should identify anticipated requests for a confidentiality order with the Case Management Judge as soon as possible.
- Where confidential information is to be used only on a motion for refusals, the parties should seek guidance from the court whether a Rule 151 motion needs to be brought.
- The parties should address any need for a confidentiality order for trial or hearing with the trial judge at a trial management conference to be convened in advance of the trial.