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To the extent information is disclosed at trial, the undertaking is reduced

The implied undertaking of confidentiality generally expires when information subject to the undertaking is disclosed at trial:
 
If the adverse party chooses to use the evidence or information obtained on discovery at the hearing on the merits and files it in the court record for that purpose, any expectation of confidentiality disappears. Only exceptional grounds such as, for example, the interest of one party in protecting trade secrets or specially privileged information, such as professional privilege or in camera hearings concerning individuals’ conditions, will result in the court maintaining the partial or complete secrecy of certain information, during the trial and in the court records. 
(Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 at para. 43).
 
Similarly:
 
It is now clear that a litigant’s obligation of confidentiality respecting documents obtained on discovery comes to an end at the time a document is entered in evidence at the trial, unless there is an agreement between the parties or a court order to the contrary.
(International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2008 BCSC 1009 at para. 28).
 
The implied undertaking continues with respect to information that is not disclosed at trial 
 
When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order.
(Juman v. Doucette, 2008 SCC 8 at para. 51).
 
In International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2008 BCSC 1009 Halfyard J. held that sensitive business information should continue to be governed by the implied undertaking despite it having been disclosed at trial:
 
The undertaking not to use the documents obtained on discovery except in the civil proceedings in which the documents were obtained, is an undertaking to the court…  The court has the inherent power to control its own process...  This discretion must of course be exercised judicially.
 
In the particular and unusual circumstances of this case, it is my opinion that it would best serve the interests of justice if the undertaking of confidentiality given by the parties and their lawyers to the court should survive the trial, even with respect to documents that were entered as exhibits at the trial, and I so order.
 
(International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2008 BCSC 1009 at para. 35-36).
 
However, that decision was overturned on appeal. The fact that the party seeking continuation of the implied undertaking (the plaintiff union) had been the one to disclose them at trail counted against the undertaking continuing, but the British Columbia Court of Appeal held that the undertaking would have expired in any event:
 
[H]ere, the Union elected to make the Documents public and cannot be said to be prejudiced if the defendants, like any other member of the public, use them for other purposes.  The fact the Union disclosed the Documents prior to trial does not, in my respectful view, alter this fact. What happened in the discovery room is superseded by what the Union did in the courtroom.
 
…Furthermore, even if the defendants had entered the Documents into evidence, the obligation would have terminated at that time in accordance with the law reviewed above.
 
(International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355 at para. 28-29).
 
The above indicates that when information becomes evidence at trial it is no longer covered by the implied undertaking.
 
 
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.