New Leading Decision on Counsel’s and Expert’s Eyes Only Protective Orders Released: Federal Court of Appeal Provides Important Guidance

On October 22, 2018, the Federal Court of Appeal released its decision in Arkipelago Architecture Inc v Enghouse Systems Limited, 2018 FCA 192 [Enghouse] where it upheld the Federal Court's decision to dismiss an appeal from the Case Management Judge's decision to grant a “counsel’s and expert’s eyes only” protective order (the CEEO Order).

As the new leading case on CEEO Orders, the Federal Court of Appeal's decision provides much-needed guidance to clients and their counsel who consider the need for and merits of protecting the highly sensitive confidential information that is often central to issues in intellectual property litigation.

CEEO Orders are an Exception within an Exception to the Open Court Principle

Under the open court principle, normally, the entire public, including the parties, parties’ counsel, and parties’ expert witnesses have access to all information and documents that are relevant to any matter in issue in an action.

A confidentiality order is an exception to this principle because it precludes the distribution of confidential and sensitive information to the public.