What is the current state of the law on an implied undertaking of confidentiality in discovery evidence?
British Columbia, Canada
The following excerpt is from Nielsen v. Nielsen, 2017 BCSC 269 (CanLII):
The leading case with respect to implied undertaking is Juman v. Doucette, [2008] S.C.J. No. 157. Discovery evidence in respect of examinations and document production is subject to an implied undertaking of confidentiality and, absent consent or leave of the court, can only be used for the purposes of the litigation in which it is produced. It cannot be shared with non-parties, nor can it be used for ulterior or collateral purposes. The rationale for the implied undertaking includes the protection of privacy interests, and the assurance to a litigant that documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which the Lists are provided or the documents produced.
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