This issue arose recently in Foundem v Google LLC, and resulted in an important judgment on 18 March 2020 by the English High Court (the trial court in the UK) (the “Judgment”) concerning the balancing of potentially conflicting interests. Specifically, the court considered the extent to which Google’s confidential and highly technical information regarding the operation of its search algorithms which Google relied upon in its “strike-out application” (similar to a motion to dismiss a complaint or a motion to strike allegations in a complaint in the U.S.) should be protected from disclosure to Foundem’s expert. In an effort to balance the interests of the parties, the Judge gave Google two options as to how it could proceed: either Foundem’s expert would be permitted to review all of Google’s confidential evidence; or, Google would have to cease its reliance on that evidence in its strike out application.
The Judgment is important for litigants in competition disputes. It provides that:
- confidentiality restrictions, in particular those preventing the parties themselves (as distinct from their counsel) from having access to evidence used against them, apply only in exceptional circumstances and should be limited to the narrowest extent possible; and
- counsel should advise their clients as to the proper limits of restricting inspection of documents on confidentiality grounds in order to avoid excessive confidentiality claims.
The English Civil Procedure Rules (“CPR”) contain various provisions that protect confidential information in documents disclosed in proceedings in the English courts. For example, CPR 31.22(1) provides that disclosed documents may only be used for the purposes of the proceedings in which they are disclosed. However, despite the general protections enshrined in the CPR, parties in competition disputes often seek additional protection of their confidential information through the use of so-called confidentiality “rings” or “clubs” (similar to confidentiality orders in the U.S.). Confidentiality rings are designed to limit the inspection of documents to a limited category or group of individuals when the documents in question are highly confidential and contain, for example, current business secrets or commercially sensitive information. The individual is required to execute a form of undertaking that the documents will not be disclosed or used other than for the purposes of the proceedings. These restrictions mean that in some cases the parties themselves may not inspect documents so categorized. At the least restrictive end, a confidentiality ring limits access to certain documents to a specified group of individuals (similar to a “Confidential” designation in a U.S. confidentiality order), which typically include the parties themselves, their counsel, and experts. At the most restrictive end, a confidentiality ring may be limited only to certain specific members of the party’s legal team, and may exclude the party itself (similar to an “Attorneys’ Eyes Only” designation in a U.S. confidentiality order). Such a ring is commonly referred to as a “legal eyes only” confidentiality ring.
The decision as to whether a document should be withheld from inspection on the grounds of confidentiality rests with the party disclosing the document. It is not surprising therefore that, over time, it has become standard practice for one or more confidentiality rings to be established in competition damages claims. However, as the legal system in England and Wales operates on the principle of “open justice”, restricting access to documents or holding hearings in private (in whole or part) should be exceptional. Moreover, “legal eyes only” confidentiality rings conflict with the general rule in English law that each party must be able to know and understand the case that is being made against it. Confidentiality concerns therefore must be balanced against a party’s right to a fair trial, and when questions are raised about the legitimacy of the confidentiality protections, it is for the court to provide guidance and adjudicate any disputes.
Background to Foundem’s Application to admit its expert to the LEO and RLEO confidentiality clubs
Foundem operated a “vertical” search service allowing consumers to compare prices for goods and services offered on third party websites. In June 2012, in parallel with the EU Commission’s investigation into Google Shopping, Foundem issued proceedings against Google in the English High Court asserting that Google had abused its dominant position in giving more favourable positioning and display in its search results to its own comparison shopping service (Google Shopping) as compared to competing services. Following a prolonged investigation, on 27 June 2017, the Commission adopted its decision finding that Google LLC, had infringed Article 102 of the Treaty on the Functioning of the European Union (the “Decision”). Foundem’s claim comprises both “follow-on” claims relying on the infringement found in the Decision and stand-alone claims alleging a wider abuse of dominance. In July 2019, Google filed an application to strike-out and/or for summary judgment in relation to Foundem’s standalone claims (Google’s “Strike-Out Application”).
There are three tiers of confidentiality ring (or “Clubs”) in the Foundem proceedings:
- The Confidentiality Club: whose members include the parties and their legal and expert advisors;
- The Legal Eyes Only (“LEO”) Club: whose members include only the parties’ legal and expert advisors; and
- The Restricted Legal Eyes Only (“RLEO”) Club: whose members include only a limited sub-set of the parties’ legal advisors.
In support of its Strike-Out Application, Google relied upon technical evidence which was disclosed into either the LEO or RLEO Clubs on the basis that it was “highly confidential”. This meant that neither Foundem itself nor its experts could inspect that evidence. Foundem sought the admission of its expert to the LEO and RLEO Clubs so that he could analyze Google’s technical evidence and advise Foundem’s legal team as to the import and significance of that evidence (“Foundem’s Application”). Foundem’s Application was heard at a one-day hearing on 13 November 2019.
In considering whether Foundem’s expert should be admitted to the Clubs, the Court considered the balancing act to be performed between the protection of confidential information and ensuring trials are conducted on the basis of “natural justice”. One element of which was paragraph 12 of the UK Supreme Court’s judgment in Al Rawi v Security Services  UKSC 34, declaring that:
“A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.”
In the same case, the UK Supreme Court referred to a limited exception to this principle when full disclosure might not be not possible if it would “render the proceedings futile,” but noted that it would be unprecedented to conduct a trial when one party was denied access to evidence which was relied upon at trial by another party. A similar view was taken in another English case, Roussel Uclaf v Imperial Chemical Industries plc  RPC 45, in which it was noted at paragraph 49 that while a court should be careful not to expose a party to “unnecessary risk” in so far as the disclosure of its trade secrets is concerned:
“it would be exceptional to prevent a party from access to information which would play a substantial part in the case as such would mean that the party would be unable to hear a substantial part of the case, would be unable to understand the reasons for the advice given to him and, in some cases, the reasons for the judgment.” [emphasis added]
Recognizing the exceptional nature of restrictions to the inspection of documents underpinning a party’ pleaded case, it was stated in the Judgment (paragraph 42):
“the important points to emerge from the authorities 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 applying these principles to the facts of Foundem’s Application, the Judgment took five factors into account, namely:
- If successful, Google’s Strike-Out Application has the potential to dispose of a significant part of Foundem’s claim;
- Google’s RLEO material continues to be highly confidential and Google has a legitimate interest in preventing it from becoming widely known;
- Google had not advanced its Strike-Out Application on grounds of law alone but chose to submit, and rely on, substantial technical witness statements and evidence;
- In order to respond meaningfully to Google’s technical evidence, Foundem’s counsel require the assistance of a technical expert; and
- In responding to Google’s Strike-Out Application, Foundem is entitled to consider and rely upon LEO and RLEO documents other than those relied on by Google;
Accordingly, it was determined that Foundem’s expert was to be admitted to the LEO and RLEO Clubs for the purpose of assisting Foundem to properly respond to Google’s Strike-Out Application. By way of alternative, the High Court offered Google the possibility of withdrawing its reliance on evidence designated as RLEO and LEO such that it would not be necessary for Foundem’s expert to be admitted to the Clubs at this stage of the proceedings.
Postscript to the Judgment
The Court took the opportunity in a postscript to the Judgment to remind lawyers of their duties to advise clients on the proper limits of confidentiality. The Court observed that there was an increasing tendency for excessive confidentiality claims to be being made in competition claims, only for such claims to be dropped following an objection by the other side or intervention by the Court – an approach which the Court found to be “wasteful of time and costs” and “not the way modern litigation should be conducted.”
The Court noted that the parties and their advisors should bear in mind that redactions of documents on confidentiality grounds and disclosure of documents into confidentiality rings “are exceptions to the normal regime for disclosure and inspection of relevant documents” and referred to the guidance laid down by the European Court of Justice in Evonik Degussa v Commission that there is a rebuttable presumption that after five years a document is unlikely to be confidential. The Court also emphasized counsel's ongoing duties to: (a) advise their clients as to the proper limits of confidentiality in light of CPR rule 31.22; and (b) investigate carefully and discuss with their clients if they consider that their clients may have made excessive confidentiality claims.
The Judgment is important in two principal respects:
- it reaffirms the right of litigants in English proceedings to have an independent expert admitted to even the most restrictive of confidentiality rings so that she/he may have access to that information and advise their client accordingly. This is important for companies bringing claims against “Big Tech” companies, given the likely asymmetry of information between the parties and the highly technical nature of the evidence involved in such cases. Going forward, parties may seek to rely on this Judgment to ensure that even when information is subject to confidentiality protections, appropriately qualified experts will be permitted to review that information and advise their client accordingly; and
- it serves as a timely reminder of the limits of confidentiality protections afforded to documents disclosed in English proceedings and counsel’s duty to reign-in potentially excessive or unmerited confidentiality claims. The Court has set out the principles governing its approach to the balancing of interests where confidential documents are concerned.
It is also worth noting that confidentiality rings are relatively uncommon in commercial disputes (for example, in banking litigation). Even when such disputes concern highly confidential information, parties are apparently largely content to rely upon the protections afforded by CPR rule 31.22. The Judgment may invite reflection upon whether disclosure is indeed so exceptionally confidential that highly restrictive measures need to be taken to protect it when a court may be invited to determine whether those measures are in fact merited given the nature of the documents in question.