The Federal Court will not rubber stamp agreements counsel may enter into regarding confidentiality and the sealing of public records

Pursuant to Rule 151 of the Federal Court Rules, on motion, the Court may order that material to be filed shall be treated as confidential. However, before making such an order, the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.

In Teva Neuroscience G.P.-S.E.N.C. v. Canada (Attorney General) (2008 FC 1091) T-470-08, Date: September 30, 2008, Teva Neuroscience G.P.-S.E.N.C. ("Teva") sought judicial review of the Patented Medicine Prices Review Board's decision dated February 25, 2008 that Teva's drug Copaxone was priced excessively, as well as the Board's final order and reasons dated May 12, 2008 that Teva was required to make payment to Her Majesty the Queen in Right of Canada as a consequence.

In this case, Teva sought to have two categories of information sealed, namely,

  1. the information that it and the Patented Medicine Prices Review Board staff agreed to treat as confidential during the proceeding before the Board; and
  2. those documents which the Patented Medicine Prices Review Board ordered should be treated as confidential.

Teva described the information that was kept confidential by agreement as "proprietary pricing information about Copaxone's Average Transaction Price, its Maximum Non-Excessive Price, and other confidential information that Teva was required to provide to Board Staff as part of its regulatory filing under the Patent Act. The Court held that it was not clear from the motion record what this information even was or how its disclosure could cause Teva harm or create an unfair advantage to its competitors such that the result, as between pharmaceutical companies or the impact on the pharmaceutical industry, is not in the public interest. The Court noted that the motion record simply referred to defined terms without any definition or elaboration that would assist the Court and the draft order simply made reference to "those documents" that were "treated as confidential" by agreement between Teva and Board staff. The Court opined that it cannot merely serve as a rubber stamp to whatever agreements counsel may enter into regarding confidentiality and the sealing of public records – an open court process and the public interest can only be curtailed in clear cases. The Court noted that there was insufficient evidence to conclude that "Copaxone's Average Transaction Price", its "Maximum Non-Excessive Price", and "other confidential information that Teva was required to provide to Board Staff as part of its regulatory filing under the Patent Act" should be filed with this Court on a confidential basis. Accordingly, the lack of adequate evidence left the Court without the ability to determine whether there was any merit to Teva's claims and whether that part of the order sought should be granted. The Court gave Teva the benefit of the doubt, by dismissing this part of the motion without prejudice to a further motion being brought in respect of this category of information.

As to the second category of documents, Teva described this information as Teva's proprietary international pricing information for Copaxone. Teva acknowledged that this information was public information, however, Teva argued that the disclosure of the information in the documents as compiled by Teva would reduce the time, effort, and associated expense that its competitors would be required to expend in order to obtain it, thereby granting them a competitive advantage that they may not otherwise have. The Court dismissed this part of Teva's motion as the information about international pricing is in the public domain and noted that the fact that Teva had compiled it or had it organized in a certain way, does not automatically or necessarily make it confidential – even if it eases the burden on someone else.