Eli Lilly v. Apotex; interlocutory motion; 2008 FC 892; cefaclor; July 21, 2008

In this patent infringement action, the Court held that the protective order in the proceeding only applied to documents produced and exchanged prior to trial and did not apply to documents filed as exhibits during the trial. This motion was brought to extend the protective order to documents provided during trial.

The Court held that the party seeking the protective order had the burden of establishing on a balance of probabilities the existence of a serious risk. The public interest in open and accessible Court proceedings must prevail otherwise. The Court further held that it would be contrary to the principle of open and transparent justice to seal an entire expert report simply because an appendix or a paragraph contains information described as private and valuable, the disclosure of which would be prejudicial. Only those portions which pass the applicable test would be expunged or sealed.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2008/2008fc892/2008fc892.html