Justice Perell Says Deemed Undertaking Normally Adequate, Tweaks it for Proceeding

On June 13th Justice Perell of the Ontario Superior Court of Justice issued an order that clarified the scope of the deemed undertaking and slightly modified it for a particular class proceeding. He also affirmed, however, that the undertaking is the normal source of privacy protection for parties to litigation in Ontario.

The class proceeding defendant argued that the deemed undertaking was inadequate for protecting its confidential business information. In particular, it argued that undertaking would not preclude the filing of production materials (on the public record) in interlocutory motions without notice and would not protect against misuse by experts and “third parties.” It proposed a confidentiality order that would restrict access to production materials to certain “permitted persons,” some of whom would be required to sign a confidentiality order.

Justice Perell rejected the defendant’s proposed confidentiality order as inconsistent with the basis for the deemed undertaking rule and too cumbersome. He said that the deemed undertaking will normally provide adequate protection and issued an order imposing a modified form of the rule. In response to the defendant’s particular concerns, Justice Perell ordered a provision for serving materials on an interlocutory motion 15 days before filing, a specification that the undertaking binds lawyers’ staff, experts and consultants and a specification that the undertaking prohibits the disclosure of information to class members unless in ordinary circumstances. Justice Perell also imposed a term requiring the parties to destroy production materials (without specification as to means) at the conclusion of the action.

Robinson v. Medtronic Inc., 2011 ONSC 3663.

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