“[Google] refers to the RLEO material for two limited purposes only: i) to ensure that the Court has a sufficient picture of the sort of technical “signals” that [Google] uses to underpin its search engine, and which it is not the task of the competition authorities or courts to re-design in the absence of some departure from competition on the merits; ii) to show the Court that, by and large, exactly the same evidence and submissions were presented by [Google] to the Commission for the purposes of its own exhaustive multi-year investigation into [Foundem]’s parallel complaint in that forum, following which the Commission decided not to take [Foundem]’s allegations forward. The Commission did not need to instruct any expert or trade witness to reach the conclusion that it is not the province of antitrust to interfere with [Google]’s ordinary product design choices or how its algorithms work, and therefore not to pursue [Foundem]’s allegations in this regard.”
“The key reason why [Google] now refers to this RLEO material at all in support of its application for summary dismissal is simply to show the Court – directly and plainly – that this is evidential material which was considered by the Commission as part of its own independent assessment of [Foundem]’s claims, and which the Commission did not see as giving rise to any abuse in itself.”
“… the Commission is not preventing Google from applying adjustment mechanisms. Recital (16) explains that “adjustment mechanisms” are the means used by Google to refine the ranking of generic search results on its general search results page. Algorithm A and Panda are both adjustment mechanisms. [My footnote] The abuse established by this Decision concerns simply the fact that Google does not apply these mechanisms in the same way to Google’s comparison shopping services and competing comparison shopping services.”
“What he is seeking to do is both show what the Commission received, and he does exhibit that material. As I say, he does not rely on these signals which are protected by the RLEO designations as part of a positive case. But [he] also helps explain to the court, to the judge at the hearing itself, as background, how this all works, because it is an important case and it was essentially considered to be important that the court should also be aware of these basic matters; but as context and not in order to say there is [no] legitimate case being mounted against us which depends on the reasonableness or proportionateness of what is done, and we will be meeting it on the substance.”
“63. Neither I nor Google suggest that Mr Klöckner would deliberately breach any undertaking. The concern is that once information of the type included in the LEO/RLEO documentation is known, it is difficult to see how someone working in the online search and search optimisation industry or advising in the area of online advertising could avoid even unconsciously relying upon it. 64. Thus, granting access to information designated as RLEO would enable those individuals to use their privileged knowledge of the signals used by Google to rank its Search results to secure an advantage that other web designers would not have – and thus it would allow them to ‘game’ and potentially distort the Search results to their advantage. The integrity of Google’s ranking processes relies upon all webmasters or website owners having the same degree of access to information about Google’s ranking (webmasters do have access to the Webmaster Guidelines, and other public material made available to assist them). This will no longer be the case if information of this kind is made available to some individuals offering commercial services to assist companies to improve their Search ranking. 65. To the extent that the LEO information relates to information other than algorithms or signals, it relates to other technical details or to Google’s internal processes and strategic thinking, the disclosure of which raises the same or similar concerns.”
“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. The Privy Council said in the civil case of Kanda v Government of Malaya[1962] AC 322 , 337: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."”
“… where the whole object of the proceedings is to protect a commercial interest, full disclosure may not be possible if it would render the proceedings futile. This problem occurs in intellectual property proceedings. It is commonplace to deal with the issue of disclosure by establishing "confidentiality rings" of persons who may see certain confidential material which is withheld from one or more of the parties to the litigation at least in its initial stages. Such claims by their very nature raise special problems which require exceptional solutions. I am not aware of a case in which a court has approved a trial of such a case proceeding in circumstances where one party was denied access to evidence which was being relied on at the trial by the other party.”
“In patent actions it is not unusual that documents disclosed on discovery include matters which a party considers contain valuable confidential information. The procedure normally adopted is that disclosure is first made in confidence to counsel, solicitors, independent patent agents and independent experts. In many cases this enables the parties to prepare and argue their cases properly. Further, the parties can often agree that all that is necessary to preserve the confidential information is that certain parts of the documents are blanked out.”
“The court does not normally operate on the basis that a party will wilfully misuse information disclosed to it. But it is recognised that disclosure of information to a party who is or may become involved in collateral commercial activities may place that party in a difficult position where there was a risk of use or disclosure …”
“It is clear that both individuals are close to IPCom in the sense that they form an important part of IPCom’s licensing team.”
“Nevertheless, points of a very broad brush nature have been made in the pleadings about the relevance or lack of it of Nokia's and HTC's licences, a matter on which IPCom have the right to respond.”
“Dr Sedlmaier, on the other hand is an external lawyer bound by a professional code of conduct. I accept that he is, as the evidence shows, extremely close to IPCom, and has been involved in commercial negotiations. Whilst that fact is relied on by HTC, Nokia and the interested parties to make a case for his exclusion, it shows also that, if he is included, the prejudice to IPCom is significantly mitigated. To the extent that he is involved in future negotiations he will have to shut out from his mind anything learned from the confidential documents.”
“In the light of the decision and discussion in Al Rawi, it is my view that at common law the court has no jurisdiction to deny a party access to the evidence at trial. But if the jurisdiction does exist, it is in my judgment so exceptional as to be of largely theoretical interest only.”
“One of the challenges in trying this case was confidentiality. The arguments, evidence and disclosure documents included a large amount of material in which confidentiality was claimed. Some of the claims were from parties or companies who had been parties (Ericsson and Samsung) but some of the confidential material was confidential to third parties such as licensees. The legal representatives of all parties were privy to all the material but some aspects, e.g. material relating to Samsung or Ericsson, was maintained as confidential from Huawei or Unwired Planet staff. Attempting to determine the confidential status of material during the hearing would have been impossible, so the trial was conducted accepting many of the claims to confidence for the time being. While wide claims to confidentiality had been made before trial, they were reduced considerably at and during the hearing. Thus much of the trial took place in public.”
“Google’s LEO and RLEO redactions make it impossible for me to understand the meaning and implications of documents which, Google says, are relevant to the issues in dispute in the Proceedings (which includes documents in addition to those expressly relied upon by Google in its Application). In particular, these redactions mean that I am unable to verify various propositions contained in Mr Kwok’s first witness statement and, if appropriate, to challenge his opinions on the application of Google’s algorithms to Foundem’s website. For example, on the basis of the confidential redacted versions of the LEO and RLEO documents which I have reviewed, I am unable to assess: A) whether Algorithm A and Panda targeted thin affiliate sites/search in search sites only, or whether they targeted competing vertical search sites; B) if the signals assigned to these algorithms are suitable to identify thin affiliate/search in search sites, while minimizing false positives or damage to competing sites; C) if similar or the same rules could be applied to Google’s products; D) whether the specific set of signals in fact correlate with good user experience or discriminate against low quality results; E) whether a reasonable assessment of the signals and algorithm(s) would or could have given any indication of any potential anti-competitive consequences of their deployment; F) whether these signals or guidelines have been publicly available to the industry/community; G) how transparent Google was about applicable guidelines, potential violations and characteristics of websites it deemed “low quality”; H) whether Foundem or other parties had a chance to know “what hit them” and whether they could have taken any countermeasures; I) whether it would be fair to assume that Foundem was aware of any violation or circumvention of guidelines; and J) whether other search engines were generally using a similar set of signals to ensure search quality.”
“5.3 …, due to the dependency of many experts in the field of online marketing and search engine optimisation on maintaining a positive, working relationship with Google, all of the other potential expert candidates that we approached stated that they were unwilling to be instructed as experts by a litigant that is pursuing a claim adverse to Google. That is so even for academics. 5.4 Mr Klöckner is the only candidate that we have been able to identify with the requisite qualifications who is willing to be instructed as an expert in legal proceedings against Google….”
“In my judgment there is no difference in principle between the ambit of the solicitor's duty, on the one hand, in the conduct and supervision of disclosure and, on the other hand, in the conduct and supervision of any redaction of disclosable documents before they are offered for inspection. Listing documents for the purposes of disclosure and making them available for inspection are both parts of the process more generally called disclosure, and the court is heavily reliant upon the solicitor's duty to carry out or at least personally to supervise both tasks ….”