Mr Justice Roth hands down important judgment concerning the use of confidentiality rings

19/03/20

Mr Justice Roth has handed down an important judgment concerning the protection of confidential information disclosed in court proceedings, ordering that Google must make available highly confidential information about the operation of its search algorithms to an expert instructed by its opponent, or amend its case so that it no longer relies on any such information. He has also made valuable general observations about the prevalence of excessive confidentiality claims in competition proceedings.

The case concerns proceedings brought by the Claimant, Foundem, which operated a “vertical” search engine allowing consumers to compare prices for goods and services offered on third party websites. Foundem alleges that it suffered losses owing to the abuse by Google of its dominant position on the “horizontal” search engine market.  Foundem’s claim relies in part on the Commission’s 2017 Google Search (Shopping) decision in Case AT.39740. Google has applied to strike out the parts of Foundem’s claim which do not rely on that decision.

In its strike out application, Google sought to rely on technical evidence from two of its engineers which relied in particular on information about the operation of Google’s search algorithms that was said to be so confidential that only Foundem’s lawyers could see it on the provision of strict written undertakings. Foundem applied to admit a search-engine optimisation expert to the relevant confidentiality rings so that he could have the opportunity to consider Google’s technical evidence. Google resisted, noting that the information at issue could potentially be used, however inadvertently, by Foundem’s proposed expert in the context of his other search-engine optimisation work.

Mr Justice Roth carried out a detailed review of the case-law on confidentiality rings. He ordered that if Google wanted to rely on its strike out application in its present form, it had to make the confidential material available to Foundem’s expert. Considering IPCom GmbH & Co v HTC Europe Co Ltd [2013] 52 (Pat), a patent case, he observed that Foundem’s expert would simply have to be trusted to consider what he conscientiously could or could not do on other SEO matters having regard to what he may learn from the documents at issue. His central conclusion was that Foundem’s application must prevail in “the interests of the administration of justice and Foundem’s right to a fair hearing of the case” (at [48]). The only other option was for Google to abandon reliance on the relevant elements of its strike out application.

Mr Justice Roth also took the opportunity to comment on the increasing assertion of excessive confidentiality claims in competition litigation. He observed that the approach of making such claims only for them to be curtailed on objection from the other side or the court is “wasteful of time and costs, and is not the way modern litigation should be conducted” (at [57]). He further emphasised solicitors’ duty to advise their clients as to the proper limits of confidentiality.

The Judgment is available here.