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Formalities for Confidentiality Orders Not Required for Trial Materials

On March 29, 2018 the Federal Court dismissed MediaTube’s motion challenging the confidentiality designations made by Bell Canada during and following the trial of its patent infringement action alleging Bell’s FibeTV services infringe Canadian Patent No. 2,339,477.

During trial, Bell requested that certain documents be treated as confidential and MediaTube did not object. The Federal Court agreed that these documents should be treated as confidential.

Following trial, Bell identified additional exhibits and transcripts that it considered confidential and requested that these be excluded from the public record. The documents and transcripts were also excluded from the public record.

MediaTube subsequently challenged Bell’s confidentiality designations on the basis that (1) the entire trial was open to the public in accordance with the open court principle, (2) the protective order did not permit documents to be filed under seal and (3) Bell never obtained a confidentiality order pursuant to rule 151 of the Federal Courts Rules nor did it satisfy the Supreme Court’s Sierra Club requirements for confidentiality.

MediaTube’s motion was heard by the trial Judge who noted that the specific documents and testimony that Bell considered confidential were not exhaustively identified during the trial. The Court also acknowledged that there was never a request to exclude the public and that the courtroom remained open to the public throughout the trial:

It is also notable that the courtroom remained open to the public throughout the trial. There was never a request to exclude the public. Bell submits that there was never a need to close the courtroom to members of the public because none was present when any confidential information was discussed. MediaTube notes that there is no evidence to support this submission.

The Court held that the confidentiality issue was res judicata as the confidentiality of the documents and testimony at issue had already been decided:

I agree with Bell’s argument that the issue of the confidentiality of the documents and testimony in question has already been decided and is not subject to reconsideration by me. The issue of confidentiality was raised at trial; MediaTube was present but elected not to respond or object; I considered Bell’s request for confidential treatment of information about Bell’s network; and, I agreed that such information should indeed be treated as confidential. The information in question was understood throughout the trial to be confidential.

In dismissing MediaTube’s motion, the Court acknowledged that Bell did not bring a formal confidentiality motion pursuant to rule 151 nor did it submit any evidence on the issue of confidentiality. Despite this, the Court stated that it was concerned about the efficient conduct of trials if parties were required to make formal motions, supported by evidence, for a formal confidentiality order.

A copy of the Federal Court’s Order and Reasons can be found here.

MediaTube, represented by Aitken Klee, has appealed the trial Judge’s Order.