• Court Grants New Counsels’ Eyes Only Order Where Previous Order Interfered Significantly with the Solicitor-Client Relationship
  • July 21, 2017 | Authors: Beverley Moore; Adrian J. Howard
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Bard Peripheral Vascular Inc. v. W.L. Gore & Associates, Inc., 2017 FC 585

    The Court granted an appeal of the Prothonotary’s Order, allowing Bard’s motion to amend provisions in an existing protective order to the designation of “Counsels’ Eyes Only” (“Amended CEO Order”).

    In the underlying proceeding, Bard alleged that Gore has infringed the ‘519 Patent, entitled Prosthetic Vascular Graft; Gore counterclaimed that the ‘519 Patent is invalid. The inventor of the ‘519 Patent, Dr. Goldfarb, has previously testified before the Federal Court in a related Canadian litigation matter pertaining to the ‘519 Patent, and before courts in the United States in related litigation matters.

    Gore brought a motion before the District Court to examine Dr. Goldfarb on the basis of Letters Rogatory issued from this Court in this action. The District Court issued a subpoena, which was successfully quashed on appeal on the basis that Dr. Goldfarb was medically unfit to be examined. The Medical Records and the Subpoena Order were designated as CEO by the District Court.

    The Amended CEO Order at issue prevented Gore’s trial counsel from showing the U.S. order quashing a subpoena, and Dr. David Goldfarb’s medical information, to Gore’s in-house counsel and outside experts. The Court agreed that the Prothonotary erred in fact and law in holding that the Amended CEO Order would not prejudice Gore. Gore stated that it plans to use the Medical Records to challenge the admissibility of the hearsay evidence of Dr. Goldfarb, after outside counsel is able to receive necessary and proper instructions from their in-house counsel. This is precluded by the amended Order. The Court concluded that the Amended CEO Order was inappropriate because of its significant interference with the solicitor-client relationship and granted a new CEO Order, which allows Gore’s in-house counsel access to the Subpoena Order and the Medical Records.