ARTICLE · 16 FEBRUARY 2018

For My Eyes Only: Counsel's And Expert's Eyes Only Protective Order

Norton Rose Fulbright Canada LLP

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The Federal Court is willing to grant a restrictive protective order to protect commercially sensitive information disclosed during litigation if justified by unusual circumstances.

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The Federal Court is willing to grant a restrictive protective order to protect commercially sensitive information disclosed during litigation if justified by unusual circumstances.

In Arkipelago Architecture Inc v Enghouse Systems Limited, the plaintiff brought an action for copyright infringement alleging that the plaintiff's computer program was reproduced in the defendants' software. A protective order was issued, by which certain information disclosed during the litigation would be protected by a "counsel's and expert's eyes only" (CEEO) designation, thus barring the plaintiff's president from viewing this information. The court dismissed the plaintiff's appeal of the issuance of the protective order, finding no error in the determination that there were unusual circumstances allowing for such an order.

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