Confidential information protected by court order cannot be disclosed to non-parties without adequate safeguards.

Introduction

[1] This is an application by the defendants for leave to disclose and allow access of the plaintiff 's confidential information duly protected by a Protective Order to a non-party.

Summary Of The Salient Background Facts

[2] Earlier in this action, the plaintiff had applied for interim payment of EUR 6.91m by the defendants ("Interim Payment Application"). The Interim Payment Application is still pending.

[3] One of the affidavits in support of the Interim Payment Application contains confidential information and/or documents relating to a Patent Licencing Agreement and other related documents (collectively, "Confidential Documents") between the plaintiff, Nokia Corporation and VIVO Mobile Communications Co Ltd in China ("VIVO China").

[4] To preserve the confidentiality of the confidential documents, the plaintiff successfully applied for a Protective Order ("Protective Order") to, inter alia, place the Confidential Documents in a confidential supplementary affidavit ("Confidential Affidavit") and, without e-fling it, serve it on this Court and on the defendants. The Protective Order expressly limited access to it to the judge, the advocates and solicitors representing the parties, and the parties. Any other party would have to obtain prior leave of the Court. That Confidential Affidavit has been filed.

[5] When the defendant sought the plaintiff 's consent to disclose and provided access to the confidential affidavit to VIVO China, the plaintiff set several conditions, to protect the confidentiality of the Confidential Affidavit, and by extension, the Confidential Documents ("the plaintiff 's conditions").

[6] Regarding the plaintiff 's conditions as unworkable or unreasonable, the defendant is now applying to the Court for leave to disclose and allow VIVO China access to the confidential affidavit and thus, the Confidential Documents ("the defendant's application").

Decision And Reasons

[7] I would dismiss the defendants' application with costs, for several reasons.

[8] First, I find that the plaintiff is certainly entitled to impose the plaintiff 's conditions.

[9] Warner-Lambert Co v. Glaxo Laboratories Limited [1975] RPC 354 that learned counsel for the plaintiff referred to involved an action for patent infringement, like here, in which the plaintiff sought to disclose the defendant's confidential information to one of the plaintiff 's experts. The Court of Appeal allowed that disclosure subject to the expert first giving an undertaking in writing to the defendant and to the Court to not divulge that information or any part of it to anyone else without the consent of the defendant or the authority of an order of the Court, and not to use the information or permit it to be used for any other purpose other than the purpose connected with the action.

[10] That is what the plaintiff is asking for here. So, if an expert involved directly in the case is required to provide an undertaking to protect the confidentiality of the documents, then more so a non-party.

[11] Second, I find that the plaintiff 's conditions and each of them are validly sought and are neither unjust nor unreasonable. They include:

(i) An undertaking by VIVO China to keep the confidential affidavit and thus, the confidential documents, confidential at all times and not to disclose them to any third parties;

(ii) An undertaking by VIVO China to use the information in the confidential affidavit and the confidential documents for a limited purpose, ie only for the purpose of assisting the Defendants to respond to the Interim Payment Application;

(iii) For the defendants to ensure that VIVO China complies with those undertakings; and

(iv) If VIVO Ch