You are here

The effect of the implied undertaking: no use for a collateral purpose

The effect of the implied undertaking rule is, quite simply, that the information communicated under compulsion of the Rules of Court cannot be used for any purpose other than for litigating the case it was disclosed in:
 
The receiving party is only to use the disclosed information in the litigation in which it was produced.
(Bodnar v. The Cash Store Inc., 2010 BCSC 660 at para. 2).
 
Similarly:
 
It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced.  
(British Columbia v. Tekavec, 2012 BCSC 1348 at para. 11).
 
Similarly:
 
The law delineating the scope of the implied undertaking of confidentiality respecting use of information obtained through the litigation discovery process draws a bright line.  Use of that information within the litigation is permitted use.  Use outside the litigation for an “alien” or “collateral” purpose is not permitted without the consent of the affected party or an order of the court.
(Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 at paras. 48-49).
 
Except in exigent circumstances, the restriction on use applies unless and until the party disclosing the information consents to collateral use of the information or a court order permitting collateral use is granted:
 
[B]oth documentary and oral information obtained on discovery…is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.
(Juman v. Doucette, 2008 SCC 8 at para. 4).
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.