Filing of Confidential Documents

August 2008

PRACTICE DIRECTION REGARDING THE FILING OF CONFIDENTIAL DOCUMENTS

Part A: Non Urgent Proceedings

Documents marked as confidential will not be accepted for filing unless a Competition Tribunal confidentiality order is in place.

A party or intervenor wishing to file a document containing confidential information should: (i) file the public version of the document marked "Public" with a motion for a confidentiality order; and (ii) provide the Tribunal Registry with a version of the document marked "confidential" that includes and identifies (in bold capital letters) the confidential information that has been deleted from the public version.

The draft confidentiality order should include:

  1. a description of the confidential document, the confidential information or the category of document or information for which the person seeks the confidentiality order;

  2. the identification of the person or category of persons who are entitled to have access to the confidential information or document;

  3. any document or information or category of document or information to be made available to the persons referred to in subparagraph (ii);

  4. any written confidentiality agreement to be signed by the person referred to in subparagraph (ii) and the provisions of that agreement;

  5. the number of copies of any confidential document to be provided to the persons referred to in subparagraph (ii) [if applicable] and any limitation on subsequent reproduction of that document by that person; and

  6. the disposal of the confidential document following the final disposition of the proceeding.

An example of a draft confidentiality order is attached as Appendix A. Parties will need to adapt the order to the particular facts of their proceeding. If necessary, the parties may agree to two levels of confidentiality.

A party or intervenor who wishes to file a document containing information that has already been made subject to a confidentiality order shall file a public version that does not include the confidential information and a confidential version with each page clearly marked "confidential".

Part B: Urgent Matters

There may be cases in which due to time constraints, it will be impractical to bring a motion for a confidentiality order and prepare a public version of confidential material. In such cases, with the prior approval of the presiding judicial member, confidential materials may be filed in confidence without an order or public version on the undertaking that, at the direction of the presiding judicial member once the urgent phase has passed, a confidentiality order and public versions of all confidential material will be added to the file.

Justice Sandra Simpson
Chairperson

APPENDIX A:
DRAFT CONFIDENTIALITY ORDER


  1. FURTHER TO the application filed by the Commissioner of Competition (the "Commissioner") for an order pursuant to section ______ of the Competition Act, R.S.C. 1985, c. C-34 (the "Act"), (description of remedy sought);

  2. AND FURTHER TO the __(name of party)__'s request for a confidentiality order;

  3. AND FURTHER TO the draft order confidentiality order filed on consent by the Parties on __(date)__;

    4. THE TRIBUNAL ORDERS THAT:

  4. For purposes of this order
    1. "Document" means any document whether in physical or electronic form, including the things defined as "records" in subsection 2(1) of the Act;
    2. "Protected Document" means any documents produced in the Proceeding, including documents listed in affidavit of documents, expert reports, pleadings, affidavits, submissions, or lay witness statements and information contained in those documents, that a Party claims is confidential or that the Tribunal has determined is confidential;
    3. "Parties" means the Commissioner and the Respondent, and "Party" means the Commissioner or the Respondent;
    4. "Proceeding" means the section _____ application brought by the Commissioner and any motions or applications related thereto.

  5. Disclosure of Documents containing any of the following types of information could cause specific and direct harm:
    1. Information relating to prices (to the extent that such prices have not been published or made generally known to competitors and customers), capacity, specific output or revenue data or market shares, or negotiations with customers about prices, rates and incentives;
    2. Lists of existing, prospective, and former customers and/or suppliers;
    3. Confidential contractual arrangements between the Parties and their customers and/or suppliers;
    4. Financial data and reports;
    5. Business plans, marketing and strategic plans, budgets, forecasts, and other similar information;
    6. Internal market studies and analyses;
    7. Confidential financial information relating to the Parties, their customers, or other third parties; and;
    8. Other documents containing competitively sensitive and/or proprietary information of the Parties or third parties.

  6. If information from a Protected Document is incorporated into any other document, that document shall be a Protected Document.

  7. Protected Documents will be identified in the following manner for the purpose of this Proceeding:
    1. At the time of production of a document, or as soon thereafter as possible, a Party that claims confidentiality over a document shall provide counsel for the other Parties with written notice identifying that document as a Protected Document;
    2. All documents designated as Protected Documents shall, on a preliminary basis, be treated as a Protected Document, pending further determination;
    3. Following the exchange of documents, the Parties shall use their best efforts to agree as to whether the documents (or portions thereof) are to be treated as Protected Documents;
    4. If agreement cannot be reached, the Parties may apply to the Tribunal to determine whether the document or a portion thereof, is a Protected Document.

  8. Subject to a further order of the Tribunal, the consent of the Parties or as required by law, Protected Documents may only be disclosed to the following people, except as required by law: (i) counsel for the Parties and their staff; (ii) independent experts retained by the Parties who have executed Confidentiality Undertakings in the form attached as Schedule A; (iii) the Commissioner and the Commissioner's staff.

  9. Prior to gaining access to Protected Documents referred to in this order, independent experts shall execute a Confidentiality Undertaking in the form attached as Schedule A. Confidentiality Undertakings shall be filed promptly with the Registrar of the Tribunal, who shall retain them in confidence until completion or final disposition of this Proceeding and any related appeals.

  10. If a Party is required by law to disclose a Protected Document, or if a Party receives written notice from a person who has signed a Confidentiality Undertaking pursuant to this order that they are required by law to disclose a Protected Document, that Party shall give prompt written notice to the Party that claimed confidentiality over the Protected Document so that the Party that claimed confidentiality may seek a protective order or other appropriate remedy.

  11. Counsel for a Party and his or her staff, and the Commissioner and her staff may make copies as they require in connection with the Proceeding.

  12. Nothing in this order prevents a Party from having full access to Protected Documents that originated from that Party.

  13. Parties shall provide the Tribunal with redacted versions of all Protected Documents at the time of filing the Protected Document.

  14. At the hearing of the Proceeding:
    1. Protected documents tendered as evidence at the hearing of the Proceeding shall be identified as such and clearly marked as such;
    2. The Tribunal may determine whether the document should be treated as Protected Document;
    3. Protected Documents shall not form part of the public record unless the Party or Parties claiming confidentiality waive the claim, or the Tribunal determines that the document is not a Protected Document.

  15. The termination of the Proceeding shall not relieve any person to whom Protected Documents were disclosed pursuant to this order from the obligation of maintaining the confidentiality of such Protected Documents in accordance with the provisions of this order and any confidentiality agreement.

  16. Upon completion or final disposition of the Proceeding and any appeals, all Protected Documents and any copies of Protected Documents, with the exception of Protected Documents in the possession of the Commissioner and her staff, shall be destroyed or returned to the Party that produced them unless the Party that produced the Protected Documents states, in writing, that they may be disposed of in some other manner, provided that counsel may keep one set of Protected Documents in their files.

  17. This order supersedes and replaces any existing confidentiality agreements between the Parties with respect to material produced in the Proceeding.

  18. This order shall be subject to further direction of the Tribunal and may be varied by order of the Tribunal.

SCHEDULE A:
CONFIDENTIALITY UNDERTAKING


IN CONSIDERATION of being provided with information or documentation in connection with the proceeding in the Competition Tribunal, File Number CT-_____________
(the "Proceeding"), between the Commissioner of Competition and ________________ over which claims for confidentiality have been advanced ("Protected Documents"),
I, _______________________, in the Province of _______________, hereby undertake and agree to maintain the confidentiality of any Protected Document that I obtain, and in particular:


  1. I will not copy or disclose a Protected Document to any other person, except to a person permitted to receive it under the Confidentiality Order of the Competition Tribunal dated _________, or such further order as the Tribunal may make.

  2. I will not use the information or documentation so obtained for any purpose other than in connection with the Proceeding (including any application or proceedings to enforce any Order made by the Tribunal in connection with the Proceeding, and any application under section. 106 of the Competition Act, to vary or rescind any order made by the Tribunal in connection with the Proceeding), and any related appeals only.

  3. Upon completion of this application and any related appeals, I agree that all Protected Documents in my possession, shall be dealt with in accordance with instructions from counsel for the party I am retained by or as prescribed by order of the Tribunal. I may retain in my confidential files, subject to the requirements of confidentiality imposed by this undertaking, materials prepared by me, such as my expert report, as well as study results and materials of a general nature which do not replicate any confidential information from a Protected Document.

  4. I have read the Confidentiality Order, a copy of which is attached to this agreement, and agree to be bound by it. I acknowledge that any breach of this undertaking by me will be considered to be a breach of the said order of the Competition Tribunal.

  5. I acknowledge and agree that the owner of a Protected Document may not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this undertaking are not performed in accordance with its specific terms or otherwise breached. Accordingly, I agree that the owner of a Protected Document shall be entitled to injunctive relief to prevent breaches of this agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which they may be entitled at law or in equity.

  6. In the event that I am required by law to disclose any Protected Document that is subject to this undertaking, I will provide [insert name of retaining or employing party] ith prompt written notice so that the person that claimed confidentiality over such information or documentation may seek a protective order or other appropriate remedy. In any event, I will furnish only that portion of the Protected Document that is legally required and I will exercise my best efforts to obtain reliable assurance that confidential treatment will be accorded to it.

  7. I will promptly, upon the request of the person providing a Protected Document, advise where it is kept by me.

  8. I hereby attorn to the jurisdiction of the Competition Tribunal to resolve any disputes arising under this agreement.


SIGNED, SEALED AND DELIVERED before a witness this __________ day of ___________,


___________________________
(Witness Signature)                                          (Signature)


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(Print Name)                                               (Print Name)