In
Federal Court Protective Orders – Back from the Dead?,
three Federal Court decisions on protective orders were discussed
– in two decisions, protective orders were granted, and in
the other decision – Canadian National Railway Company v BNSF Railway
Company – Justice Locke denied the parties a consent
protective order.
In Canadian National Railway
Company v BNSF Railway Company, the parties had prepared a
joint draft protective order based on a Federal Court template
developed over the years by the Federal Court IP Users'
Committee. Justice Locke (as he then was) reviewed the consent
protective order against the Supreme Court of Canada's
Sierra Club of Canada v Canada confidentiality orders
factors, and held a protective order was unnecessary because
"reasonably alternative measures" (e.g.,
protective agreements, the implied undertaking rule) were available
to the parties. As was noted in the above-mentioned article, that
decision was appealed by Canadian
