Thursday, February 27, 2020

Foreign Location of Firm a Factor in C-CEO Designation

Depura Partners LLC v Desjardins General Insurance Inc 2020 FC 261 LeBlanc J
             2,777,931 / System for monitoring vehicle and operator behavior

This decision granted a contested motion to designate certain documents describing technical details of the defendant’s allegedly infringing technology as “Confidential Information – Counsel’s Eyes Only” [C-CEO]. The decision applies established law, but one interesting point is raised on the facts regarding the relevance of foreign residence of firm principals to the C-CEO designation.

The plaintiff is a foreign based firm, and none of the five principals reside in Canada [28]. In granting the C-CEO designation, LeBlanc J rejected the contention that the implied undertaking rule would provide adequate protection, in part because “should I refuse to validate the C-CEO designation of one or any of these documents, the Court would have no meaningful way to control the use, or sanction the misuse, by any of the five individuals that make up the Plaintiff, of the information contained in said documents as these individuals all reside outside Canada and are, individually, not subject to the Court’s jurisdiction” [30]. This consideration was clearly not determinative, as LeBlanc J had held that there was sufficient basis to grant the designation even absent these additional considerations, but it does indicate that the fact that the firm or its principals reside outside of Canada is a factor to be considered in granting a C-CEO designation.

LeBlanc J went on to say “Moreover, any prejudice suffered by the Defendants resulting from a misuse of the information by the Plaintiff could hardly be compensated by any remedy granted by the Court in sanctioning a violation of the implied undertaking rule” [30]. It’s not entirely clear to me whether LeBlanc J meant that the inadequacy of the remedy stemmed from the fact that the principles of the firm reside outside of Canada, or whether this was an entirely separate consideration, to the effect that a breach of the order would constitute a form of irreparable harm.

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