Foundem’s application was made following Google’s reliance on highly technical evidence, including the design of its “crown jewels” search algorithms, designated as confidential in its strike out application of parts of Foundem’s damages claim against Google in relation to the European Commission’s Google Shopping Decision of 2017.
The Court acknowledged that, in exceptional circumstances, measures may need to be put in place where documents are highly confidential or contain current business secrets, so as to ensure adequate protection of those secrets. While such claims of confidentiality are not uncommon in competition damages claims, Mr Justice Roth noted that there is clear authority that confidentiality restrictions, in particular those which prevent the parties themselves (as distinct from their legal advisers) from having access to evidence used against them, should apply only in the most exceptional circumstances and be limited to the narrowest extent possible.
The Judge cited the well-established principle that natural justice requires that a party be entitled “to know the case against him and the evidence on which it is based” and gave Google two options as to how it could proceed. Either Foundem’s expert is to be permitted to review all of Google’s confidential evidence and documents; or Google must cease its reliance on that evidence in its strike out application.
Hausfeld partner Lesley Hannah notes: “This is an important judgment for competition damages claims – the Court has reiterated that claimants are entitled to understand the case against them and, if technical evidence is relied upon and deemed to be so highly confidential that the claimants themselves cannot be permitted access to it, they are entitled to have their technical experts be able to see it and advise them accordingly”.