Diet doctor seeks closed court to protect 'secret' weight-loss formula - Globe and Mail
The diet techniques of Stanley Bernstein are the same as a "secret formula" and as a result, the public should be excluded from portions of a civil trial involving him and a former business partner, his lawyers argued Thursday.
To make their legal points, both sides frequently resorted to analogies involving the recipes for distinctly non-diet fare – Kentucky Fried Chicken, Coca-Cola and Caramilk chocolate bars.
If the well-known diet doctor is successful in keeping portions of the proceedings secret, it could make it easier for corporations and individuals to bar the public from courtrooms under the guise of protecting what is claimed to be confidential business information.
"He believes competitors would be interested in the information he has," said lawyer Erin Hoult. If all of Dr. Bernstein's weight-loss techniques outlined in a confidential 600-page manual were discussed in open court, it would cause "irreparable" harm, Ms. Hoult suggested.
Dr. Bernstein is suing Scott Seagrist and his partner for more than $10-million, alleging he violated their business agreement and misused confidential information to benefit his own obesity clinics in southwestern Ontario. Dr. Seagrist has responded with a counterclaim, seeking similar financial compensation from Dr. Bernstein and arguing that his diet methods are based on public knowledge. None of the allegations has been proven in court.
The Ontario Superior Court trial was scheduled to begin this week with evidence from both of the doctors. Before that could take place however, Superior Court Justice Michael Quigley was asked by lawyers for Dr. Bernstein to close the courtroom to the public whenever there is testimony about his "treatment modality" for weight loss. Three documents, including the diet manual and a recipe book, have already been ordered sealed by another judge in a pretrial ruling.
The Supreme Court of Canada has repeatedly stressed the importance of open courts in all proceedings, so that the public will have confidence in the justice system. In the criminal courts, the public is barred only in extraordinary circumstances, such as to protect the identity and safety of a confidential police informant.
"Confidential information is at the heart of this action," said Ms. Hoult, who stressed that Dr. Bernstein was only asking to keep the public out for a small part of the trial. She also suggested there was a lesser right for the public to attend this type of court proceeding. "This is a private dispute. Yes, they have engaged the courts of Ontario. But these are not public issues," she said.
There is significant information on the websites of both Dr. Bernstein and Dr. Seagrist about their techniques, which include low-calorie diets and vitamin injections.
At one point during the legal arguments, Judge Quigley asked "if we went through the writings of [nutritionist] Leslie Beck, would we not find a lot in common?"
Ms. Hoult responded that while aspects of Dr. Bernstein's methods may be common knowledge, the "totality" of his treatments is unique and similar to a secret formula or trade secret.
Jonathan Rosenstein, who represents Dr. Seagrist, argued that only if something is a "true trade secret," would it be appropriate to close a courtroom. "If this is the 11 herbs and spices formula," then a party must be able to protect it, he said. "But there is nothing special about this case."
There are broad implications for open courts if Dr. Bernstein's arguments are accepted, said Mr. Rosenstein. "Every time there is a claim of confidentiality, you would have a trial that is sealed, at least in part," he said.
Special to the Globe and Mail
07 Oct, 2011--
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