High Court rules that independent experts should be entitled to inspect inner confidential ring documents
The High Court has ruled on an application for a confidentiality ring in a competition law case in Infederation Limited v Google LLC and others  EWHC 657 (Ch).
The claimant Foundem (Infederation) provided a search engine that allows consumers to compare prices for goods and services offered on third party websites. Foundem alleged that the defendants Google had abused a dominant position contrary to Article 102 of the Treaty on the Functioning of the European Union and the Chapter II prohibition in section 18 of the Competition Act 1998. There were proceedings in the English courts with a separate action with the European Commission. The European Commission had found that Google had infringed Article 102 by positioning and displaying more favourably in its general search results pages Google's own comparison shopping service compared to competing comparison shopping service. That decision was subject to appeal and the decision of the General Court is awaited. Meanwhile, the English law proceedings continued.
Three confidentiality rings were established by High Court orders:
Foundem identified and appointed an independent expert and sought an order that he be admitted to the confidentiality rings to address the evidence in Google's pending application and to assist in the assessment of disclosure for the trial. Google refused to agree to his admission to the LEO and RLEO rings.
The court’s decision
The court reviewed the relevant case law and observed that in a number of competition cases, and also in intellectual property cases, some parts of the evidence at the final hearing have remained subject to a confidentiality ring of lawyers and experts. Generally, the parties agree to these arrangements, although they still require the approval of the court, having regard to the principle of open justice.
The important points to emerge from the case law are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness. Any dispute over admission of an individual to the ring must be determined on the particular circumstances of the case.
In reaching its decision in this case, the court had particular regard to the following matters:
It is fundamental that a party in litigation is not bound to appoint as its own expert someone proposed by the other side. The court considered that the expert should be entitled to inspect the LEO and RLEO documents, against an appropriate confidentiality undertaking to the court. As he was based in Germany, he also needed to accept the jurisdiction of the English courts.
Court observations on assertions of confidentiality
The court added that there is an increasing tendency for excessive confidentiality claims to be asserted over documents and information in competition law proceedings, only for those claims to be curtailed or renounced in response to protests from the other side or intervention by the court. It was the court’s understanding that the same is the case in intellectual property proceedings. This is wasteful of time and costs, and it is not the way modern litigation should be conducted.
The court said that there are of course legitimate trade secrets and currently confidential information that merit protection. However, parties and their advisors should appreciate that redactions from documents on confidentiality grounds before inspection and any restriction on inspection to a confidentiality ring are exceptions to the normal regime for disclosure and inspection of relevant documents.
The decision as to whether confidentiality should be claimed for a document ultimately rests with the client, subject of course to the potential for determination by the court. But just as solicitors will not unquestioningly accept their client's view as to which documents are relevant for disclosure, the judge considered that they should not necessarily be satisfied by their client's view that open inspection of a document should be restricted on confidentiality grounds. Solicitors should advise their client as to the proper limits of confidentiality, given the protection for all disclosed documents under the Civil Procedure Rules, as well as EU case law. If solicitors have reasonable grounds for supposing that their client has made excessive confidentiality claims, they should investigate the matter carefully and discuss it with their client.