Eli Lilly Canada Inc. v. Teva Canada Limited, 2015 FC 801

Teva has appealed a Prothonotary's order to provide documents refused to be produced at examination for discovery of the Teva representative. The motion was originally allowed in respect of the production of certain documents consisting of confidential transcripts of trial testimony in two prior actions and the Confidential Reasons for Judgment in one of those prior actions. The Court agreed the order on the motion was overbroad, but otherwise dismissed Teva's appeal.

The area of contention in this matter concerns information about Teva's “trade-spend” in two other actions. Trade spend was previously described as being the rebates paid by pharmaceutical companies under different descriptions to pharmaceutical purchasers to encourage them to buy their product and to reward them when they do. Teva has indicated that no written trade-spend policies existed in 2006 and 2007, and Lilly sought the transcripts because they argued that the testimony speaks to the prevailing rate of trade-spend during a period generally the same as the present matter.

On appeal the Court held that the prior confidentiality order contained a clause providing a waiver for use or disclosure of a party's own confidential information. Therefore, the Court interpreted Rules 151 and 152 in a fashion that recognized the Prothonotary's authority to order a party to exercise its discretion to waive the confidentiality order to produce relevant documents in the interests of procedural fairness.

However, the Court modified the order to only require Teva to produce relevant portions of the materials, rather than the entire transcript. The Court ordered the parties to work out some form of process whereby the materials in question are disclosed on a “counsel's eyes only basis” to Lilly's counsel with the view to reaching some consensus on the relevant portions of the Confidential Documents that should be disclosed.