Duhaime's Law Dictionary


Implied Undertaking Rule Definition:

A party to whom documents are produced within litigation will not use them for collateral or ulterior purposes.

Related Terms: Litigation Privilege

In a 1989 article entitled The Implied Undertaking in Ontario, author and later judge of the Ontario Court of Appeal, John Laskin wrote:

"There is an implied undertaking by a party to whom documents are produced that he or she will not use them for collateral or ulterior purposes; any such use of the documents is a contempt of court.

"There is an implied undertaking by a party conducting an oral examination for discovery that the information so obtained will not be used for collateral or ulterior purposes; any such use is a contempt of court."

At ¶6 of his reasons for judgment in Colby v Ruiz, Justice Goodfellow of the Nova Scotia Supreme Court wrote:

"(The) impllied undertaking rule (means) information obtained through oral or documentary disclosure in litigation, not otherwise independently obtainable through legitimate means, cannot be used for collateral or ulterior purposes absent the consent of the producing party or leave of the court."

In Goodman v Rossi, Justice Moldaver of the Ontario Court of Appeal, in dissent, preferred this:

"Where a party has obtained information by means of court compelled production of documents or discovery, which information could not otherwise have been obtained by legitimate means independent of the litigation process, the receiving party impliedly undertakes to the court that the private information so obtained will not be used, vis-a-vis the producing party, for a purpose outside the scope of the litigation for which the disclosure was made, absent consent of the producing party or with leave of the court; any failure to comply with this undertaking shall be a contempt of court.

"This rule shall remain in effect unless and until the private information is revealed in open court.

"Framed this way, the rule makes it clear that not all information obtained through production or discovery is entitled to protection but only information which the receiving party could not otherwise have obtained by legitimate means independent of the litigation process. Such information, which I have labelled private information, would include inherently confidential material such as sensitive financial data, customer lists and the like but it would not be restricted to that.

"Secondly, the words collateral or ulterior purposes have been replaced by the words for a purpose outside the scope of the litigation for which the disclosure was made. This makes it apparent that the private information may only be used within the four corners of the subject litigation and not for any other purpose, absent consent of the producing party or with leave of the court.

"Thirdly, the scope of the rule is restricted such that it applies only to the producing party. Thus, information relating to third parties, unrelated to the producing party, will not be protected. However, in the case of a corporate defendant for example, I think that the term producing party should be expanded to include the officers, directors, employees, agents and servants of the organization from or about whom the private information relates.

"Finally, the effect of the rule is limited to such time as the private information is revealed in open court."

REFERENCES:

  • Colby v. Ruiz, 2005 NSSC 287
  • Goodman v Rossi, 120 DLR 4th 557 (1995)
  • Laskin, John, The Implied Undertaking in Ontario, 11 Adv. Q. (1989-1990), p. 298, adopted by Justice Freeman of the Nova Scotia Court of Appeal in Schwartz v. Schwartz Estate, 189 DLR 4th 79 (2000), at ¶10

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