“None of these cases purports to lay down a form of order suitable for universal use. Nor, I think, does any of them indicate that the court might not in appropriate circumstances at a later stage in the action have directed disclosure to a wider class of persons or on different terms. In my judgement, the court must in each case decide what measure of disclosure should be made, and to whom, and upon what terms, having regard to the particular circumstances of the case, bearing in mind that, if a case for disclosure is made out, the applicant should have as full a degree of appropriate disclosure as will be consistent with adequate protection of any trade secret of the respondent.”
“Each case has to be decided on its own facts and the broad principle must be that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The object to be achieved is that the applicant should have as full a degree of disclosure as will be consistent with adequate protection of the secret. In so doing, the court will be careful not to expose a party to any unnecessary risk of its trade secrets leaking to or being used by competitors. What is necessary or unnecessary will depend upon the nature of the secret, the position of the parties and the extent of the disclosure ordered. However, 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. Thus what disclosure is necessary entails not only practical matters arising in the conduct of a case but also the general position that a party should know the case he has to meet, should hear matters given in evidence and understand the reasons for the judgment.”
“The material at issue is confidential. However its potential for use to the detriment of HTC and Nokia is not at the high end of the scale represented by secret process cases. Just as the licences which I ordered to be disclosed by HTC and Nokia are likely to be different in many respects from the notional FRAND licence which the court is concerned with in the action, so also will the terms of the disclosed licences differ from any licence which IPCom is trying to negotiate in the future. Nevertheless, the court should not facilitate the granting of a competitive advantage to IPCom, and accordingly inflict a competitive disadvantage on HTC, Nokia and the interested parties, unless justice requires it to take such a course.”
“This is an unusual case, at least in the field of patent litigation in this country, in that IPCom is a very small company in terms of personnel. In a larger corporation than IPCom there would be individuals who could be given the confidential information at the interim stage on the basis that they did not play any part in commercial negotiations. That does not mean that IPCom should be treated differently in the end. But it does mean that the balance has to be struck in a different way at this stage.”
“In my judgment, the authorities discussed above establish that it is exceptional to limit access to documents in the case to external eyes only, so that no representative from the party which is subject to the restriction can see and understand those documents. An external eyes tier does not require justification for the restriction by reference to individual documents. It enables one party to decide to exclude all representatives of the opposite party from access to any document that it chooses, and places the onus on the party seeking access to apply to court to obtain it. That approach, in my judgment, is wrong in principle.”
“In my view, 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.”
“They contain information confidential to the Claimants and to their counterparties and of the utmost commercial sensitivity, information that would not be available in a commercial arm’s length negotiation between the Defendants on the one hand and the Claimants or their counterparties on the other. The Confidential Witness Statement of the solicitor for the X and Y companies demonstrates that such is the value of such confidential information that even the most stringent arrangements are not proof against leaks; that inadvertent revelation is a reality; and that once revealed, such information cannot be recovered or controlled and can result in an informational asymmetry between negotiating parties (one of whom knows the other’s confidential information, but without reciprocity) which has both immediate and permanent consequences, both for the parties themselves and across the market at large.”
“40. This is, I think, the Xiaomi Defendants’ best point. But I am not convinced that it warrants wholesale redesignation of AEO documents. The content of the SEP licences is of immense commercial sensitivity, particularly as regards those counterparties who (i) might well themselves be negotiating with the Xiaomi Defendants over licences of those or related patents (ii) are competitors of the Xiaomi Defendants implementing the same patents (and whose IP costings are exposed to scrutiny by a competitor). There are risks in disclosing such material on an AEO basis: but the move from disclosing to external professionals to disclosing to Xiaomi employees (and so transferring the information to the Xiaomi organisation itself) introduces risks of a different order. I express this view without casting doubt upon the integrity of Ms V Wang or Ms X Wang, and simply recognising that once information is inside an organisation there is a substantial risk of a leak whatever internal measures are put in place, with really serious consequences. With third party confidential information (the leakage of which may affect a global market) there is a strong case for holding that information externally and subject to filtering by independent professional lawyers and experts to assess its true materiality to the case in hand, before disclosing it to employees of the party opponent. 41. I do accept that this imposes a restraint upon the way in which the Xiaomi Defendants’ case is prepared and presented. But the right of a party to shape and present its case is not entirely unfettered. As part of its case management powers the Court can exclude an issue from consideration, give directions as to the issues upon which it requires evidence or exclude evidence if the attainment of the overriding objective so requires. Restraints upon disclosure (although grounded in practice rather than directly upon the CPR) are another such tool.”
“…114 sets of documents of confidential contractual arrangements of the greatest commercial sensitivity with significant players in the global communications market, with some of whom the Oppo Defendants are already in negotiation on SEP licensing matters, with others of whom they may become involved in relation to other SEPs and yet others of whom they are in competition. To that body of HCM disclosure may be added the redesignated AEO documents.”
“It appears from the evidence that these nominees have been put forward precisely because they are intimately involved with licencing negotiations in particular with the Claimants. Having failed to agree a licence in arm’s length negotiations with the Claimants or certain other counterparties they are now to be provided with a wide range of highly sensitive confidential information about the Claimants’ and those other parties’ pricing structures. Such a dynamic creates a perverse disincentive to reach an arm’s length settlement and a perverse encouragement of FRAND litigation.”
“… not persuaded that it is necessary (because of the absence of other suitable personnel) to convey a broad range and significant volume of confidential information to key commercial personnel directly involved in negotiating SEP licences, when the information cannot be unlearned and when such personnel will not in reality be able to avoid it influencing the course of other negotiations (particularly with counterparties to disclosed agreements). To do so would create an unnecessary risk to (particularly) the counterparties to such agreements. The Oppo Defendants must put forward someone who was not involved (and not likely to become involved) in licencing negotiations or FRAND litigation (other than this case) with the Claimants, the counterparties to any of the disclosed agreements or other members of the MCP Pool or any affiliates of theirs (“the Excluded Class”), though perhaps otherwise involved in patent or licensing litigation or in the preparation of licences with the Excluded Class or licencing negotiations or FRAND litigation with parties other than the Excluded Class. In the event that the nominee does become so involved there must be an undertaking to leave the HCM confidentiality club and to destroy documents (in conventional terms).”
“MR PICCININ: … For Oppo, just to clarify, what we want our individuals to see, are the six AEO documents plus what is currently in the HC tier, in particular the one example of the non-minnows that I have already referred to. SIR ALASTAIR NORRIS: Yes. MR PICCININ: The rest are not so important. What we are not asking for those individuals to see are the additional 30-odd documents that [counsel for Xiaomi] --- SIR ALASTAIR NORRIS: That remain in AEO? MR PICCININ: Exactly.” “MR PICCININ: … For Oppo, just to clarify, what we want our individuals to see, are the six AEO documents plus what is currently in the HC tier, in particular the one example of the non-minnows that I have already referred to. SIR ALASTAIR NORRIS: Yes. MR PICCININ: The rest are not so important. What we are not asking for those individuals to see are the additional 30-odd documents that [counsel for Xiaomi] --- SIR ALASTAIR NORRIS: That remain in AEO? MR PICCININ: Exactly.”
“The [respondents] are entitled to make an initial judgment about that, and to decide what (in their view) should be kept as AEO material and subjected to legal and expert analysis and what can be disclosed to Xiaomi employees.”