A welcome step forward for claimants fighting the confidentiality claims of "big tech" in English courts
On 18 March 2020, Mr Justice Roth sitting as a High Court Judge granted an application by the Claimant, Infederation Limited (trading as Foundem), to have its technical expert admitted to two ‘legal advisers only’ confidentiality rings in its long-running claim for damages against Google arising out of the European Commission’s Google Search (Shopping) Decision of 2017.
In July 2019, Google served an application for strike-out/(reverse) summary judgment in respect of Foundem’s standalone claims (the Strike-out Application). Google’s Strike-out Application sought to rely on highly technical evidence, including the operation and aims of its “crown jewels” Search algorithms. Google disclosed this highly technical evidence into the most restrictive confidentiality ring meaning that only a restricted group of Foundem’s legal advisers had access to the evidence. Due to the technical nature of the evidence and the fact that their client was not permitted access to the evidence, Foundem’s legal team sought to have an independent technical expert admitted to the confidentiality rings in order to advise them in relation to the evidence. Google did not consent to the technical expert’s admission to the confidentiality rings and therefore Foundem filed an application for his admission.
In his judgment, Mr Justice Roth cited Lord Dyson in the Supreme Court ruling in Al Rawi v Security Services  UKSC 34 [at 12] and 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 that “[t]he other side may not advance contentions or adduce evidence of which he is kept in ignorance.” In carefully balancing the requirements of natural justice with the need to protect Google’s confidential information, the Judge found that, in these circumstances, the scales tipped in favour of the Claimant, as Google’s Strike-out Application has the potential to dispose of a significant part of Foundem’s claim.
The Judge therefore gave Google two options as to how it could proceed: Either Foundem’s expert is to be admitted to all confidentiality rings and permitted to review all of Google’s disclosure, including evidence relied upon in its Strike Out Application concerning its “crown jewels” algorithms; or Google must cease its reliance on that evidence. Google has until 7 April 2020 to communicate to the Claimant which option it has chosen.
The judgment comes as an important reminder to litigants in competition and intellectual property disputes 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.
In addition, Mr Justice Roth took the opportunity to remind practitioners of their duty to advise their clients on the proper limits of confidentiality claims when disclosing evidence in UK proceedings. The Judge expressed his concern that there was an increasing tendency towards excessive confidentiality claims, only for such claims to be dropped following challenges by the opposing party or intervention by the courts. He noted that this was both wasteful of time and costs and reminded solicitors of their professional conduct obligations in that regard.
The judgment is particularly encouraging for claimants litigating against “Big Tech” companies in the UK courts. Due to the asymmetry of information in these types of cases, they will often turn on an analysis of highly technical and ultra-sensitive proprietary information that is at the commercial core of many online businesses. As a result of this judgment, parties will be able to ensure that even where information is subject to confidentiality protections, appropriately qualified experts will be permitted to review that information and advise the legal team accordingly.