In some provinces the courts have recognized the existence of an implied undertaking, on the part of the party receiving information produced in the discovery process, not to use that information in subsequent litigation for penal purposes. This implied undertaking flows from the general right against self-incrimination. Therefore, it is sometimes unnecessary for the court to make a protective order. Where, however, protective orders are granted, their purpose would be to deal with very sensitive information, the disclosure of which could harm the competitive position or reputation of the disclosing party. Thus, in a patent infringement suit it was ordered that only the legal counsel of record and the designated representatives of the receiving party working directly on the litigation could have access to the items produced on discovery and that those items could only be used for the purpose of the litigation (Procter & Gamble v. Kimberly-Clark (1989), 25 C.P.R. (3d) 12).
