Novo Terapeutisk Laboratorium A/s v. Baxter Travenol Laboratories, Inc., Gist-Brocades Fermentation Industries, Inc., and Gist-Brocades N. V. , 607 F.2d 186 ( 1979 )

SWYGERT, Circuit Judge,

dissenting.

Perhaps nothing need be added to Judge Grant’s excellent analysis in the panel opinion of the issue presented in this case. There is, however, one aspect that I believe needs emphasis. Policy considerations require the erection of an irrebuttable presumption in a situation like this. Once the sharing of a relevant confidence is presumed, that presumption ought not be the subject of rebuttal. To allow rebuttal is to invite casuistry and, even worse, a swearing contest. Courts should keep out of that thicket. The overall policy of maintaining the vitality of Canons 4 and 9 and discouraging “subtle” but enervating interpretations of these Canons demands nothing less.

This case is an example of how we lawyers and judges can fall into the error of making fine distinctions and forging legal niceties all in the interest of “doing justice,” thus finding ourselves focused on the trees but forgetful about the importance of the forest.