In Fibrogen, Inc. v. Akebia Therapeutics, Inc., 2022 FCA 135, the Federal Court of Appeal recently clarified the scope of the implied undertaking rule in the Federal Court, and how it intersects with the open court principle and protective orders/confidentiality agreements. This panel will discuss:
- Recent jurisprudence on protective orders, culminating in the decision in Canadian National Railway Company v. BNSF Railway Company, 2020 FCA 45;
- History of the implied undertaking rule in the Federal Courts and other jurisdictions;
- Open court principle, confidentiality orders, and the principles in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41;
- Intersection of these various confidentiality protections; and
- Impact of discontinuance.
