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Implied undertaking information may be used in examination of non-party witness

The court in Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 held that information covered by the implied undertaking may be used in the discovery of non-party witnesses: 
 
One of the defendants’ applications in that case was for an order under Rule 28 to examine the plaintiff’s former girlfriend.  Suppose the order was made and the examination proceeded.  Ought the defendants’ counsel to be put at risk of being found in contempt of court for asking the witness about matters of the plaintiff’s health which arose at the discovery of the plaintiff or through examination of his health records obtained through disclosure from a non party?  Ought the defendants’ counsel to be at risk of being found in contempt of court for disclosing that information in the application to court, served on the girlfriend so as to give her the opportunity to resist the application that she be examined by averring she has no knowledge of these matters?
 
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).
 
 
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.