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Use in parallel or related proceedings is not permitted

The implied undertaking governs information disclosed in a proceeding and prevents it being used freely in other proceedings (i.e. proceedings with separate court file numbers) regardless of whether those other proceedings involve the same parties:
 
Had the named defendants in the Current Action been, by some remarkable circumstance, the named defendants in the Earlier Actions, the evidence would not have been available to them (subject to the other arguments advanced by the defendants to make use of such information) without either the accedance of the plaintiff or an order of the court. Thus, for example, if a party makes disclosure in litigation against the Provincial or Federal Crown, it is not open to either of those parties to look to or make use of such disclosure in subsequent litigation involving those same parties. The implied undertaking rule extends to subsequent or consecutive litigation between the same parties.
A party who has documents from earlier litigation that are impressed with the implied undertaking simply cannot make use of those documents without the concurrence of the party from whom they were obtained or leave of the court. The implied undertaking protects documents or oral discovery obtained in earlier litigation from being used for any purpose “collateral” to that litigation. Thus, the documents cannot be used for internal strategic review in subsequent litigation. They cannot be used for the purposes of drafting pleadings. They cannot be sent to counsel for the purposes of obtaining an opinion in new litigation.  
 
(Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 21 and 25).
 
In Holman v. Nguyen, 2000 BCSC 1915 a plaintiff brought successive claims arising out of two motor vehicle accidents. The examination for discovery report prepared by defence counsel in the first action was shared with defence counsel in the second action. The court held this to be a breach of the implied undertaking and to ensure fairness to the plaintiff ordered disclosure of the original examination for discovery report to the plaintiff; see discussion in remedies section below.
 
In Svorinic v. Svorinic, 2012 BCSC 826 the lawyer for the husband acted for a previous husband of the same woman. The court held that use of an expert produced in the Provincial Court family law proceeding involving the first husband (Mr. Filotto) in the second proceeding (involving Mr. Svorinic) in Supreme Court was a breach of the implied undertaking:
 
The report of Dr. Elterman came into existence as a result of an order of the Provincial Court. Accordingly, it would likely be subject to the implied undertaking. If so, Mr. Filotto was in breach of the undertaking when he gave a copy of the report to Mr. Svorinic.
(Svorinic v. Svorinic, 2012 BCSC 826 at para. 61).
 
In the case of parallel and related proceedings counsel should not assume that the other parties agree to share and use information across proceedings. Rather, the consent of all parties to use all information in all proceedings, or a court order permitting such use, should be obtained.
 
Common situations of parallel and related proceedings occur where personal injury plaintiffs bring separate actions arising out of different motor vehicle accidents, or bring tort and Part 7 actions.
 
 
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.