What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?
At the reasoned request of any party to the proceedings, the court may order another party or a third party to produce specific relevant evidence or categories of relevant evidence in its possession. The court must, however, limit the production of evidence to that which is proportionate, taking into account the legitimate interests of all parties and third parties concerned. Before ordering the production of evidence, the (third) party who may be ordered to do so must be invited by the court to submit its written comments regarding the measure.
When the court orders the production of evidence containing confidential information, it takes effective measures to protect that confidential information. These measures include, inter alia, the possibility to conceal sensitive passages by requesting the submission of non-confidential versions of exhibits, requesting summaries of information carried out by experts, holding closed hearings, or limiting the group of persons who may become acquainted with the evidence.
The court can also order the Belgian Competition Authority to produce evidence, but only after inviting it to submit its written comments regarding the proportionality of the measure and only where no other person or entity can reasonably provide the evidence. Certain types of evidence can only be requested from the Belgian Competition Authority after it has ended its own proceedings (e.g. the information that was prepared for the proceedings of the authority and the settlement submissions that have been withdrawn).
The court cannot request a party or anyone else to produce leniency declarations or settlement proposals, except to verify whether they are indeed such types of documents. These documents cannot be used as evidence.
Fines can be administered for the refusal to produce evidence ordered by the court, for the destruction of evidence, for the failure to comply with obligations to protect confidential information or for infringement of the legal restrictions on the use of evidence.
Parties also have the possibility to request courts to treat their trade secrets as confidential. If the court agrees that specific information meets the standards of a trade secret (i.e. it is secret, it has a commercial value and reasonable measures were taken in the past to protect its confidentiality), all the persons involved in the proceedings are prohibited from using or disclosing the trade secret during or after the end of the proceedings under fines. A party can also request the court to restrict access to any document containing trade secrets to a limited number of persons, restrict access to hearings to a limited number of persons, and/or render a non-confidential version of any judgment.
As a general rule, all actions must be public, and copies are available to third parties, as established by the Civil Procedure Code. Exceptions allow actions to be confidential when involving: (i) public or social interest; (ii) family matters, such as divorce, marriage, alimony, custody, etc.; (iii) information protected by the constitutional right to intimacy; (iv) other cases of confidentiality set forth by specific laws, for example industrial secrets, among others.
Parties can also request specific documents, or even the entire content of the case files, to be treated as confidential, by classifying them under a category where such confidentiality is granted, as explained above. If such request is not granted, then the public can access any document from the case files. If the confidentiality request is granted, then the specific document, or case files, will not be available to third parties - they will be filed in separate files, labelled as confidential, and access will be granted only to legal representatives of the parties and the court.
As regards documents from the competition authority file, when private claims are being formulated in parallel to CADE proceedings, the possibility to obtain evidence from CADE is a matter of on-going debate. Private claimants are currently only able to access case documents once a final decision is made available by CADE, and subject to standard disclosure limitations regarding, for instance, leniency agreements.
In fact, with respect to leniency applications, there are numerous restrictions on the availability of evidence for private actions. CADE’s Guidelines stipulate that no documents submitted will be disclosed except in case of a court order or express authorisation from the leniency applicant. Where a court orders a leniency applicant to disclose materials related to its leniency application in a related civil proceeding, CADE has intervened in favour of protecting the confidentiality of these documents while the investigation is ongoing. Further, once the investigation is completed, CADE can also intervene in civil proceedings to ensure that the release of leniency material is reasonable, proportional and legitimately related to the plaintiff’s claim.
Finally, in general, any communication between attorneys and their clients is protected and not subject to seizure or inspection.
- If the competition damages claims involve evidence containing state secrets, trade secrets, personal privacy or other confidential information, the court may, either ex officio or upon the application of the relevant litigant, take reasonable measures to protect such confidential information (e.g., hearing the case in private session, restricting or prohibiting the reproduction of the evidence, presenting the evidence only to the lawyers, or ordering the parties to sign non-disclosure letters).
- As to the rules for disclosure of documents from the competition authority or other third parties, the claimant in competition damages claims may ask the PRC court to collect documents from the competition authority or other third parties who are in possession of relevant case-related evidence that would not otherwise be accessible. Upon review and approval of the claimant’s application, either the court will issue an order requesting the relevant document provisions (such as the documents collected by the competition authority during public enforcement actions that are relevant to the competition damages claim at issue) from the competition authority or other third parties, or the judge(s) will come to the competition authority or other parties to collect the relevant documents in person.
Generally speaking, the documents collected from the competition authority or other third parties may only be used in the competition damages claim in question and must be kept confidential if such documents contain the aforesaid confidential information. The attorneys of both parties may have access to such documents.
Regarding the rules on disclosure of documents in competition damages claims, Law 113(I)/2017 provides specific regulations for the following:
(a) Disclosure of Evidence;
it is stipulated that subject to provisions related to (b) and (c), the Court has discretion following the submission of a request by the claimant or defendant, to order said claimant or defendant or third person to disclose relevant evidence that lies in their control. Such disclosure of evidence should be limited to that which is proportionate considering the legitimate interests of the all parties and third parties concerned. Specifically, the Court should consider:
(a)(1) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;
(a)(2) the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure;
(a)(3) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.
Additionally, within the context of adjudicating a competition damages claim, the Court may order the disclosure of evidence that contains confidential information if it is considered relevant to the action for damages, provided that when such order is made, the Court has at its disposal and may enforce at its discretion, relevant measures to protect such confidential information such as:
(a)(4) storage of confidential information in a specially designed location which is under the responsibility of the Court registrar;
(a)(5) sealing of confidential information in secure and sealed envelopes to which access is restricted to the Court and to the parties who are determined by the Court;
(a)(6) appointment of experts to produce reports in a form which protects confidentiality.
When ordering the disclosure of evidence, the Court must ensure to give full effect to applicable legal professional privilege under Union or national law, and prior to ordering such disclosure that those from whom disclosure is sought are provided with an opportunity to be heard.
(b) Disclosure of evidence included in the file of the competition authority.
In accordance with applying the proportionality test described in (a) above as well as the stipulated considerations, the Court additionally should consider the following:
(b)(1) whether the request has been formulated specifically with regards to the nature, subject matter or contents of documents submitted to a competition authority or to the European Commission, or held in the file thereof of the competition authority or of the European Commission, rather than by a non-specific application concerning documents submitted to a competition authority;
(b)(2) whether the party requesting disclosure is doing so in relation to an action for damages before the Court; and
(b)(3) the need to safeguard the effectiveness of the enforcement of competition law.
The Court may order the disclosure of the following categories of evidence subject to the national competition authority or the European Commission having concluded its proceedings by issuing a decision or otherwise:
(b)(4) information that was prepared by a natural or legal person specifically for the proceedings of a competition authority or of the European Commission;
(b)(5) information that the competition authority or the European Commission has drawn up and sent to the parties in the course of its proceedings; and
(b)(6) settlement submissions that have been withdrawn.
During the adjudication of an action for damages, the Court cannot at any time order a party or a third party to disclose any of the following categories of evidence:
(b)(7) leniency statements; and
(b)(8) settlement submissions,
however, the claimant may present a reasoned request that the Court access the evidence referred to above (b)(7)&(8), for the sole purpose of ensuring that their contents correspond to the definitions in points (b)(1) – (3). During its evaluation, the Court may request the contribution of the competent national competition authority or of the European Commission and the authors of such evidence may be summoned to be heard in Court. In no event should the Court permit other parties or third parties access to that evidence.
If only parts of the evidence requested fall within one of the categories of evidence described in points (b)(7)&(8), the remaining parts thereof shall, depending on the category under which they fall, be released in accordance with the relevant provisions of this section.
The disclosure of evidence in the file of a competition authority or of the European Commission that does not fall into any of the categories listed in this section may be ordered in actions for damages at any time, without prejudice to the provisions of this section.
In the event that a party or a third party is not reasonably able to provide the evidence which is included in the file of the national competition authority or of the European Commission, the Court may request such disclosure of evidence from a competition authority or from the European Commission.
The party which requests the disclosure of evidence included in the file of the competition authority or of the European Commission, is obliged to serve such request to said competition authority or European Commission.
(c) Limits on the use of evidence obtained solely through access to the file of a competition authority.
Evidence in the categories listed in points (b)(7)&(8) which are received by a person exclusively via access to the file of the national competition authority or of the European Commission, are deemed inadmissible in actions for damages.
Evidence in the categories listed in points (b)(4) or (5) or (6) above, which are received by a person exclusively via access to the file of the national competition authority or of the European Commission, are deemed inadmissible in actions for damages until the competition authority or the European Commission has closed its proceedings by adopting a decision or otherwise.
Evidence which is received by a person exclusively via access to the file of the national competition authority or of the European Commission and which does not fall within the categories listed in points (b)(4)-(8), can be used in an action for damages only by that person or by a natural or legal person that succeeded to that person's rights, including a person that acquired that person's claim.
Documents submitted as evidence are only accessible by the parties to the procedure regardless of the fact that the cases are heard in open court. However, documents submitted as evidence containing sensitive information may not be accessible by the opposing party to the case if the documents are protected by privilege and it is stated as such during the discovery of documents stage.
There is mainly an obligation of non-disclosure in handling competition matters before ECA. The ECL imposes a non-disclosure obligation on all ECA employees with regard to information, documents, evidences, certificates, and their sources (“investigation components”) that are used during ECA investigations prior issuing a decision. These instruction components could only be disclosed to the relevant authorities i.e. the Public Prosecution and the Economic Court or to any other relevant authority which may assist in such investigations. In all events, the investigation components shall not be used for any other purpose whatsoever.
Contrary to the non-disclosure obligation before ECA, proceedings before the Court are public. The parties may request however, that proceedings, upon acceptance of the Court, shall be partially or fully confidential.
Disclosure of documents during a competition damages action before civil and commercial courts is regulated by the rules of civil procedure (article L. 483-1 FCC, introduced into French law as part of the implementation of the Damages Directive).
Disclosure of information from another party or from a third party
Under article L. 483-1 of the FCC, when the claimant establishes a plausible harm resulting from anticompetitive practices, it may request the disclosure of evidence relevant to its claim by another party or a third party.
When deciding on a request for disclosure, the court must consider the legitimate interests of all parties and third parties concerned. In particular, it takes into account the usefulness of the requested evidence, the protection of the confidentiality of such evidence and the preservation of the effectiveness and consistency of the application of competition law by the competent authorities.
The court’s order to disclose a piece of evidence can be challenged before the First President of the Paris Court of Appeal whose judgments can be appealed before the Cour de cassation.
A party or a third party who wishes to challenge this disclosure injunction has to file a request for confidentiality and establish that the production of the relevant documents, or parts of them, violates its business secrets or is protected by legal attorney-client privilege. It then has to hand over the relevant documents to the court together with a non-confidential version of them, a summary explaining the nature of the redacted information and an explanation of the reasons for its confidentiality. The court can also hear any interested party to this end.
After a careful review of the information provided to it, the court issues a reasoned order by which it decides whether and to what extent that information can be disclosed. Therefore, the court can either:
- prevent the disclosure of information which contains business secrets;
- order the partial disclosure of the requested information where only the information relevant to the claim is visible to the other party;
- order the complete disclosure of the requested information where that information is relevant for the claim and does not contain any business secret; or
- order the complete disclosure of the requested information where that information is relevant for the claim, even though it contains some business secrets. In that case, the court will limit the disclosure to a limited group of people (involving lawyers and economic experts), bound by a non-disclosure obligation.
Refusing to disclose documents following a court order can lead to fines of up to EUR 10,000 (article R. 483-14 of the FCC).
Disclosure of information from a competition authority
A court cannot order the FCA, the Commission or any competition authority from other Member States to disclose documents from their files if such documents can be provided by a party to the claim or when third parties can reasonably provide such document (Article L. 483-4 FCC). Moreover, documents from the competition authorities’ files containing self-incriminating statements provided in support of a leniency application, a settlement submission or submissions to benefit from simplified procedures can never be disclosed (article L. 483-5 FCC).
On this basis, claimants may request access to the FCA’s, the Commission’s or any other EU competition authority’s file.
With respect to access to the Commission’s file, the court, under Article 15(1) of Regulation 1/2003, can ask the Commission to provide such evidence. According to the Communication Notice on the cooperation between the Commission and the courts of the Member States of 2004, the Commission commits to provide the requesting court with the information within one month from the date it receives the request. The Commission may however refuse to transmit information to national courts where there is a need, inter alia, to safeguard the interests of the European Union or to avoid any interference with its functioning and independence.
A party may further request the court to order a foreign competition authority to disclose documents under Council Regulation n°1206/2001 (EC) of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. The court has to refer the request to the competent court of the Member State which will in turn, and after a careful review of the request, order the production of the requested document to its national competition authority.
One party can ask the court to review the content of the requested of information to assess whether it can be disclosed or not (article L. 483-6 of the FCC) based on the rule set out in article L. 483-5 of the FCC.
The following information can only be disclosed after the competent authority has rendered a decision putting an end to its proceedings:
- Any information produced by a party or a public authority as part of an investigation carried out by the FCA, a competition authority of another Member State or the Commission;
- Any information established by the competent competition authority and handed over to one party during the proceedings;
- Statements provided in support of a settlement submission from a party who withdrew from the settlement procedure (article L. 483-8 of the FCC).
Generally, German law does not provide for any form of compulsory production of documents by one party to another as known in common law jurisdictions. Whilst each party must provide the facts to substantiate its claim or defence and offer sufficient evidence, German procedural law contains only few procedural rights in order to collect and prove the relevant information (cf sections142 and 422 et seq). Systematic information deficits are addressed by German substantive law (eg, by acknowledging claims for information, legal and factual presumptions, prima facie evidence or the secondary burden of allegation).
Accordingly, it was recognized by established case law of the BGH that a cartel victim could request information from the infringer necessary for enforcing its claim for damages pursuant to section 242 BGB (performance in good faith) (see, eg, BGH, decision of 27 April 1999, case ref KZR 54/97 – Sitting patient transport). Yet, the prerequisites for such claim are high: it hinges on a legal infringement - which needs to be proven irrespective of the requested information - and is limited on the particular infringement.
Since the implementation of the EU Damages Directive, this basic system changed. Under certain, less strict conditions, both claimants and defendants can now request surrender and disclosure of evidence or information from the other side and disclosure of information from the authority's file.
Pursuant to section 33g GWB, each party to cartel damage proceedings may request surrender and disclosure of evidence or information from other private parties (ie the other side and third parties). As set out earlier, for claimants such a right is primarily relevant if it still lacks sufficient information to file a fully-fledged claim for damages (and thus, if directed against the opponent, often combined with an action in stages or filed as an auxiliary motion in case the court concludes that the claimant has not yet met its burden of proof). For defendants, such information claims prove helpful to substantiate potential defences if they lack sufficient information in this respect.
For the information claim to be successful, (i) the evidence must exist, be suitable to provide proof as needed and be necessary for the damage claim as well; (ii) the requested evidence or information needs to be designated as precisely as reasonably possible in light of the facts and must be in the possession of the other party and (iii) the claimant must credibly demonstrate to the satisfaction of the court that it has a damage claim (Glaubhaftmachung) (see section 33g paras 1 and 2 GWB). Surrender and disclosure of information is, however, excluded or may be refused if (i) the claim for information is disproportionate (Unverhältnis¬mäßigkeit), (ii) the requested documentation contains information on leniency statements or settlement submissions or (iii) documents in relation to proceedings by the competition authority, until the final conclusion of those proceedings against all parties involved (see section 33g paras 3 to 6 GWB). The requirements and exclusions cannot be circumvented by recourse to the procedural rights or information claim based on general principles of German civil law (see section 89d para 4 GWB).
Furthermore, a claimant may apply to the court that it requests disclosure of information from the authority's file (section 89c GWB). A party may demand that the competition authority discloses documents and items that are included in its files on a proceeding or kept in official custody during a proceeding if the party credibly demonstrates (glaubhaftmachen) that it has a claim for damages against another party pursuant to section 33a para 1 GWB and the information expected to be included in the file cannot be obtained from another party or third party with reasonable effort. Similar exceptions as for documents from private parties exist. Notably, the court shall decide on the application by decree, which is subject to immediate appeal.
Uncertainties remain, however, regarding the temporal scope of sections 33g and 89c GWB. Whereas the transition provision in section 186 para 4 GWB states that these provisions are only applicable in litigation proceedings initiated after 26 December 2016, the provision is silent as to whether the claim for information and the disclosure of information from the authority's file are available only for damage claims that have arisen after 26 December 2016. The Higher Regional Court of Düsseldorf took this particular view regarding section 33g GWB and denied information claims for claims that had arisen prior to 27 December 2016 (decision of 7 Mai 2018, case ref VI-W (Kart) 2/18 – Disclosure of Evidence II). Legal scholars take a different view that was confirmed by the Regional Court of Hanover (see eg LG Hannover, decision of 18 December 2017, case ref 18 O 8/17 – Trucks).
Under German civil law, there are no particular procedures to protect confidentiality. With regard to competition law claims, Section 89 para 7 GWB obliges the court to take the necessary measures to ensure the protection of confidential information, thus allowing for the maximum flexibility (eg for the so-called Düsseldorf procedure according to which confidential and proprietary information is only transmitted to the opposing counsels but not to their clients). The provision is, however, only applicable to proceedings initiated after 26 December 2016. Regarding proceedings initiated before, confidential and proprietary information can only be protected where the courts are asked to balance the conflicting interests of the parties (eg, when evaluating evidence in line with section 286 ZPO (freie Beweiswürdigung) or deciding on the proportionality of an information claim).
Parties to legal proceedings in Hong Kong are subject to a general undertaking that information and documents disclosed during court proceedings are disclosed for purposes of that proceedings only, unless and until that document has been read to or by the court in open court.
In addition, the Competition Tribunal allows parties to apply for confidential treatment of certain information disclosed during court proceedings. A party may redact part or the whole of a document to the extent that is necessary and justified.
The Competition Tribunal has also adopted a practice of granting orders for a confidentiality ring for purposes of competition law proceedings. Broadly speaking, this allow parties to nominate members of the party’s legal team to use the documents in question only for the purpose of these proceedings (and of any appeals) and not to disclose them to anyone outside the ring. Members of such a “confidentiality ring” will have access to the documents produced in these proceedings without redaction (see: Taching Petroleum Co Ltd v Meyer Aluminium Ltd  2 HKLRD 205). If documents are to be provided to anyone else, only copies with confidential information redacted will be provided.
Proceedings before the Competition Tribunal generally follow the same principles in civil proceedings in Hong Kong, including the rules for disclosure of documents. However, a significant difference under Rule 24 CTR is that there is automatic mutual discovery in Competition Tribunal proceedings (see also paragraph 58 of Competition Tribunal Practice Direction No.1).
As a general rule, parties may apply to the Competition Tribunal for an order mandating discovery and disclosure of documents. This generally extends to third parties, including the Hong Kong competition authorities, i.e. the Competition Commission and the Communications Authority.
There are, however, exceptions to the disclosure of documents. Parties may resist requests for discover of documents on grounds of legal professional privilege (under section 58 Competition Ordinance), without prejudice privilege (e.g. settlement materials), privilege against self-incrimination and common interest privilege. In addition, public authorities such as the Competition Commission and the Communications Authority may resist requests for discovery on grounds of public interest immunity (e.g. leniency materials) (Competition Commission v Nutanix Hong Kong Ltd  HKCT 1).
As part of the discovery process, the parties are required to submit to the other parties any relevant document, from requests for general disclosure to a request to disclose a specific document. At the same time, a request for confidentiality may be filed to the court for the discovery process or parts thereof (e.g., a statement of claim, an economic opinion, a specific document, etc.), in order to prevent third parties from receiving confidential information. In addition, the parties can reach procedural arrangement, according to which the documents will be forwarded to a limited number of parties, such as lawyers, experts on behalf of the parties, etc.
In general, during the discovery process, a party may request the court to instruct the other party to disclose a document or answer a questionnaire, and to instruct a third party to disclose a document in its possession or in its control.
A party may raise privilege claims for specific documents on certain grounds, such as attorney-client privilege, medical confidentiality, trade secret, etc. If necessary, the court itself will examine the document, and will decide after weighing the various interests of both sides.
Regarding documents placed in the ICA file, only parties to an administrative proceeding with the ICA, in case of an appeal, have the right to review them. Litigants in competition civil litigation which are not parties to an administrative proceeding with the ICA may file a request to disclose the documents by virtue of the Freedom of Information Law, 5758-1998.
The Civil Procedure Regulations stipulates that the court has the authority to order a litigant to disclose documents under his possession or under his control – not to a third party. The main way for disclosing third party documents is to summon him to testify and to disclose the documents.
However, in rare circumstances the court will directly order a third party to disclose documents under his possession, by virtue the Civil Procedure Regulations, when the third party is identified with the litigant in such a way that the litigant has the real control or ownership of the documents. Therefore, the third party should not be considered as an actual third party (for example, if the third party is a company owned and controlled by the litigant).
In addition, in very rare cases, the court has recognized the possibility of issuing an order directly to a third party to disclose documents, even if the documents are not wholly owned or controlled by the litigants.
Inspection of case records (Both Type A and B claims)
A third party may inspect and read a case record of competition litigation at the court by filing a request with the court clerk (Article 91(1) of CCP). When confidential information, such as a trade secret being kept by a party to the litigation, is recorded in the case record, such party may request that the court issue an order to limit the persons who may request inspection or copying of the parts of the case record containing such trade secret to only the parties to the litigation (Article 92(1)(ii) of the CCP). If the court issues such order, the confidential information will not be disclosed to third parties.
Commission to send documents (Both Type A and B claims)
There is no U.S.-style disclosure in Japan but a claimant in competition litigation may request that the court commission the JFTC to send relevant documents (Article 226 of CCP). In accordance with JFTC’s internal policy, if a cease and desist order or surcharge payment order has already become final and biding, the JFTC discloses documents relating to the existence of violating acts, amount of damage, and causation between such act and damage that were prepared or obtained in the course of issuing such order. The JFTC takes appropriate measures, such as redacting some parts of the documents, taking into account trade secrets, knowhow, and privacy of officers or employees.
Order for submission of documents (Both Type A and B claims)
If disclosure by way of commission is insufficient, the claimant may require that the court issue an order for submission of documents (Article 223 of CCP). Unless there are grounds for refusing to submit the documents set forth in Article 220 of CCP, the party possessing such documents may not refuse to submit the same. The main categories of documents subject to the grounds for refusing submission are: (i) documents concerning confidential information in connection with a public officer’s duties, which, if submitted, would likely harm the public interest or substantially hinder the performance of a public duty; (ii) documents recording technical or professional secrets which are not released from non-disclosure obligation; and (iii) documents prepared mainly for the use of the persons in possession. Among these grounds, item (iii) above refers to internal documents which are never intended to be disclosed to a third party. While item (iii) might cover documents subject to attorney-client privilege, to date, we are not aware of any statute, ordinance, or court precedent where anything to this effect is explicitly stated in relation to civil litigation system in Japan. In addition, documents created by public officers for organizational use do not fall under (iii).
Since the employees of the competition authority are public officers, whether they have an obligation to submit documents to the parties of competition litigation is determined pursuant to the above criteria. There are several court precedents which ordered the JFTC to disclose written statements of employees.
Special provisions for injunction (Article 24 of the AMA)
With regard to competition litigation seeking an injunction, there is a special rule regarding court orders for submission of documents (Article 80(1) of the AMA). Under this rule, unless there is a justifiable reason, a holder of documents necessary to prove the alleged infringement must submit such documents. In addition to ordering submission of documents, the court may also issue protective orders that trade secrets may not be used for any purpose other than the purpose of conducting the litigation or be disclosed to third parties (Article 81 of the AMA).
Dutch law does not provide for a general duty to disclose comparable to the UK or US discovery rules. At the outset of the proceedings, parties will generally only disclose those documents which assist their case and on which they wish to rely. However, the Dutch Code of Civil Procedure (“DCCP”) does contain a limited number of specific regulations which allow the court to order the disclosure of specific documents which are relevant to the assessment of the case, either upon request of a party (article 162, 843a and 843b DCCP) or ex officio (article 22 and 162 DCCP).
If there are compelling reasons to refuse to disclose, for example if the requested documents contain confidential business data, the duty to disclose may not apply. The court will balance the interested of the parties. The duty to disclose does not apply to those who have a right to refuse to give evidence on the basis of their professional occupation, such as attorneys. Other options for the court to protect commercially sensitive information are imposing an obligation of confidentiality on the requesting party, ordering that certain documents will be deposited at the court and the requesting party can study these documents in person (without giving the possibility of taking photocopies), proceedings behind closed doors.
Confidentiality or Proprietary Information
The PCA and the PCC Rules of Procedure provide for confidentiality of “business information” received during investigations before the PCC. However, the PCC may disclose this confidential information “when disclosure is required by a valid order of a court of competent jurisdiction.” This ability of the PCC to disclose confidential information is also available in respect of leniency. Thus, a Regional Trial Court hearing a Section 45 civil action can, theoretically, require the disclosure of confidential business information.
An affected party may attempt to seek a order to protect confidential or proprietary information disclosure. However, this remedy has yet to be tested in an actual case.
Discovery is available in RTC proceedings. Discovery extends to material and relevant matters that are not privileged. This includes information on the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.
Parties can also seek information and documents from third parties by requesting the court to issue subpoenas. A subpoena can be quashed if it is unreasonable or oppressive, or if the relevance of the documents is not shown. Privilege may be raised as justification to excuse compliance with a subpoena.
 - PCA, section 34; PCC Rules of Procedure, Rule XI.
 - PCC Leniency Rules, Section 10.
 - Rules of Court, Rules 23 and 25-29.
The Polish Private Enforcement Act introduces new procedures for obtaining evidence in competition damages cases, which include the claimant’s right to request for disclosure of evidence.
The court may order the defendant to produce the relevant documents in its possession and custody but only if the claimant presents substantiated request for the disclosure of evidence and undertake to make use of this evidence solely for the purposes of pending competition damages case. Failure by the defendant to produce documents may result in the claimant’s full reimbursement of the costs of the proceedings (regardless of the outcome of the case), or the court’s discretion to draw adverse inferences, or both. The defendant is also entitled to file a request for evidence subject to the same requirements and limitations.
The court may also order disclosure of information by a third party, including the competition authority. The competition authority is under an obligation to disclose such information only if obtaining it from the defendant or a third party is impossible or excessively difficult.
Leniency statements and settlement submissions made by the infringer are exempt from disclosure as privileged. At the same time, if information was prepared specifically for the purpose of the proceedings conducted by the competition authority (being the OCCP or other competition authority of the EU member state as well as the European Commission) or prepared by such competition authority, it cannot be disclosed until the proceedings before the relevant competition authority are concluded. The same rule applies to withdrawn settlement proposals.
The motion for disclosure of the evidence is dismissed if the evidence reveals information constituting a business secret or other secret subject to legal protection under separate provisions, in particular relating to third parties, and available means to protect such information. It is in the court’s hand to decide whether the evidence reveals the business secret or not. However, the court at the request of a party or a third party obliged to disclose evidence or ex officio, may restrict the other parties' right to inspect this proof or lay down detailed rules for reading and using this proof in particular to limit or exclude its copying or recording in a different way.
Law 23/2018 provides specific rules for the disclosure of confidential information. The court may only request the production of evidence that contains confidential information when it considers that it is relevant for the damages claim.
In that scenario, the court adopts measures in order to protect that information, such as (i) occultation of sensitive parts of the documents, (ii) order restricted trials and (iii) restrict the access to the confidential documentation, allowing its access only to the parties, legal representatives of the parties and experts (subject to an obligation of confidentiality), and (iv) request the elaboration of summaries of the information gathered from the confidential documents, or redact it in terms that are non-confidential.
The court may not, in any case, order the production of evidence that is subject to the lawyer’s legal privilege.
In addition to confidential documents, in the context of the proceedings a party may ask the court, or the court may issue such decision on its own competence, to order the other party or any third parties (including competition authorities) to submit any evidence in their possession, provided that the request is grounded, proportional and relevant for the case. The Portuguese Competition Authority may even issue an opinion on the proportionality of the means of proof requested.
Specifically, regarding evidence to be presented by a competition authority, the court may never order the filing of any statements that parties have previously submitted before that entity for the purposes of being granted with the exemption or the reduction of a penalty or of any transaction agreement proposals.
Parties can ask the court to keep documents confidential, to avoid third parties accessing them, arguing that the documents and the information disclosed in the file are sensitive. The court will decide whether said documents and/or information must remain or not confidential and said decision can be challenged until it is final and binding.
Party that does not want to disclose a document, that will not be granted with confidentiality, can opt to not incorporate it into the file. However, since parties should file any documents related to the case, not doing so can result in negative presumptions against them (section 388, National Civil and Commercial Procedural Code).
It will be concealed and treated as confidential:
- Copies of confidential versions of competition authorities' decisions.
- Copies of leniency materials that the defendant prepared and submitted to the competition authorities, if they are confidential.
- Any other confidential documents or materials not in the defendant's possession or control.
All information and documents controlled by third parties, including antitrust court files and documents, can be offered and obtained as evidence, if the court allows it. In general, courts allow this evidence if it is relevant to resolve the subject matter of the private antitrust litigation. To obtain this evidence, parties must request it together with the evidence offered when they file or answer a claim.
Additionally (and exceptionally), the court can order disclosure of evidence held by third parties without a party request, if the court considers it relevant to better resolve the litigation.
The Swedish legal system does not provide for discovery in the true sense of the term. Under the Swedish system, exchanges of documents pretrial may, generally, only be made on a voluntary basis. However, within the framework of a court proceeding (i.e., shortly before or during the proceeding), there is a general obligation on a person (natural or legal) in possession of a document that may have evidentiary value to disclose the document (“procedural duty of disclosure”). The rules on disclosure of evidence are found in Chapter 38 of the Code of Judicial Procedure, and require that a party seeking an order to produce evidence should identify the document and explain what information is included in the document.
As a general principle, documents received or prepared by a public authority are public. This principle is, however, subject to a number of exceptions in the Public Access to Information and Secrecy Act: the Competition Authority’s file, and information about an undertaking’s business operations, inventions and research results, are treated as confidential if the undertaking may be expected to suffer injury if such information is disclosed.
Furthermore, such documents that the Competition Authority holds and that contain declarations within a leniency process, settlement briefs, written responses and other information that have been submitted to the Competition Authority, and information provided by the Competition Authority to the parties (such as a draft statement of objection, or draft settlement decision) and settlement briefs that have been recalled, may not be the subject of a production order as long as the Competition Authority is still handling the case. The three latter categories may be subject to a document production order once the Competition Authority has closed its proceeding.
The Competition Damages Act also stipulates that declarations made within a leniency process and settlement briefs are not to be produced as evidence. Certain other categories of documents may also only be produced by the party who has obtained them from the Competition Authority, or a person who has acquired their rights. This is a limitation of the fundamental procedural rules in Sweden on free trial of evidence and free provision of evidence.
Typically, confidentiality is only maintained as regards third parties, and not as regards a party to the proceedings. However, courts have the authority, under criminal responsibility, to prohibit counsel, management or parties from providing certain documents received during the court proceedings relating to competition damages to third parties in order to prevent a ‘trade with documents’.
To ensure the secrecy of documents that a court has received through access to evidence from leniency statements and any settlement submissions, new legislation entered into force in April 2018 to safeguard the secrecy of those documents when handled by the court. A party would only be allowed to access such documents to the extent the court finds it appropriate.
In the Turkish legal system, the general principle is publicity of the hearings. In other words, all court proceedings and cases are public, and regardless of their connection to the dispute, every person has the right to attend and watch the hearings. Furthermore, as per Article 46 of Attorneys’ Act No. 1136, every attorney has the right to review the case files.
As per the Turkish Constitution and the Civil Procedure Law, closed hearings may be held only where this is required due to the principles of public morality and security. However, in order to review the case files outside the open proceedings, third parties must prove a connection to the case per Article 161 of the Civil Procedure Law. While legislation does not provide for further exceptions, there is a recent trend in legal literature in favour of extending the exceptions to include inter alia trade and professional secrets, tax confidentiality and inventions. The legal basis for this argument is the right to privacy and property enshrined in Articles 20 and 35 of the Turkish Constitution, respectively.
A party must obtain an order from the court before giving disclosure. Standard disclosure requires a party to disclose documents that are or have been in the party’s control and are directly relevant to the issues raised by the pleadings or in the affidavits after a reasonable search. A party can also apply for non-standard or more extensive disclosure. A common order is for disclosure of documents by category. Disclosure in competition damages cases can be complex, time consuming, expensive and heavily contested.
A party can request access to documents held by the ACCC but the ACCC has substantial discretion to determine whether a party can obtain access. Courts have upheld the ACCC’s claim of public interest immunity where access to internal documents is sought.
A party can request the court to order disclosure from third parties or issue subpoenas to third parties to produce relevant documents. The court may order that the requesting party is to pay the reasonable costs of production of the third party.
A party or third party cannot be required to produce a document subject to legal professional privilege. Confidentiality does not excuse production.
Parties can apply to the Federal Court to prohibit or restrict the publication or other disclosure of documents including documents exhibited to affidavits to be filed in the proceeding. A party (or a non-party whose documents are subpoenaed and will be included in the tender bundle for trial) can apply to the court for a suppression order. It is difficult to convince the court to make a suppression order as the Federal Court is required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Practically, confidentiality undertakings are often used to facilitate access by another party to commercially sensitive material prior to the hearing of an application for a suppression order. Confidentiality undertakings usually restrict the disclosure of commercially sensitive material to external solicitors, barristers and experts engaged by a party.
The general rule is that court proceedings are presumptively open in Canada and that court proceedings should be available to the public, unless disclosure would subvert the ends of justice or unduly impair its proper administration (Toronto Star Newspapers Ltd v Ontario,  2 SCR 188). However, confidentiality or sealing orders are available. The two-part test for obtaining a confidentiality or sealing order is (i) that the order is necessary in order to prevent a serious risk to an important interest in the context of litigation; and (ii) the salutary effects of the order outweigh its deleterious effects.
The Bureau’s file is typically not available to plaintiffs absent a settling defendant waiving settlement privilege and providing its own settlement material to a plaintiff in order to resolve the claim. Subsection 10(3) of the Act requires that all inquiries by the Commissioner of Competition (“Commissioner”) be conducted in private. In practice, the Bureau extends this protection to all preliminary examinations to determine whether or not the Commissioner has grounds to commence an inquiry. Further, section 29 of the Act protects and keeps confidential most information that is provided to or obtained by the Bureau in the course of administering and enforcing the Act, including the identities of persons who provide the information. The Bureau also treats as confidential the identity of a party requesting immunity or leniency, subject to limited exceptions.
Furthermore, where the allegations in a private litigation proceeding are effectively identical to the Commissioner’s allegations in a Bureau proceeding that has been resolved prior to the private litigation, the principle of litigation privilege will survive and continue to apply to communications in the context of the private litigation (Charbonneau Daneau c Bell, 2019 QCCS 825).
The confidentiality of the case file enjoys a certain degree of protection, according to the following rules:
- According to a specific provision of ICCP, in civil proceedings the parties to the proceedings and their counsels are the sole persons entitled to have access to the briefs and documents filed within the proceedings. For the sake of completeness, there is also a specific procedure allowing third parties, on the basis of a specific interest, to apply for having access to the documents of the public administration, but this procedure does not apply to the documents filed in a civil proceedings, according to the case law;
- If the documents are particularly sensitive, the parties can request the use of specific storage methods;
- If intellectual properties rights are involved further protection could be requested and granted.
Moreover, the parties are allowed to file those documents partially redacted (i.e., with omissis), to the extent of course that the delated information are not necessary for the decision.
In general, documents are filed on a voluntary basis by the parties.
However, upon the party’s request, the court can order to the other party to the proceedings or to third parties to file documents. This faculty of the court is provided both under Article 210 of the ICCP and Article 3 of L.D. 3/2017. The latter provides wider powers to courts which, for example, can order the exhibition of a whole category of evidence and not only of specific pre-identified documents.
Provided that courts take all the necessary measures to make sure that confidentiality is preserved (e.g. redaction of documents, restriction to access the evidence, etc.), the request is granted if the disclosure:
- is relevant to the final decision of the dispute and the claim appears to be reasonable;
- is proportionate, taking into account the interests of all parties involved in the proceedings;
- does not concern correspondence covered by the attorney-to-client privilege.
As for exhibition orders addressed to the Italian Competition Authority, Article 4 of the L.D. 3/2017 sets forth that the court:
- can order the exhibition of evidence contained in the file of a competition authority when neither the parties nor the third parties are reasonably able to provide such evidence;
- assesses the proportionality of the order to whether the request has been specifically formulated with regard to the nature, subject matter or content of the documents;
- after the conclusion of the proceedings by the authority, can order the exhibition of information provided in that context or of settlement submissions which have been revoked;
- cannot order a party or a third party to produce evidence relating to declarations linked to a programme of leniency or settlement submissions, where specifically regulated.
Document disclosure. In competition damages cases, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, the court may to order the defendant or a third party to disclose relevant evidence which lies in their control. Also, upon request of the defendant, the court can order the claimant or a third party to disclose relevant evidence.
The court can order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible, on the basis of reasonably available facts in the reasoned justification.
The court limits the disclosure of evidence to what is proportionate. In assessing proportionality, the court shall consider the legitimate interests of all parties and third parties concerned, especially: (i) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence; (ii) the scope and costs of disclosure, especially for any third parties concerned (including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure); (iii) whether the evidence contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.
The interest of undertakings to avoid competition damages claims is not deemed an interest warranting protection.
Third parties from whom disclosure is sought are provided with an opportunity to be heard before the court orders disclosure. The court gives full effect to applicable legal professional privilege when ordering evidence disclosure.
Confidentiality protection. The court has the power to order disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts. The court can also adopt special protection mechanisms to safeguard the confidentiality of such information: (i) redaction of sensitive paragraphs; (ii) holding non-public hearings; (iii) limitation of the access to the sensitive information; (iv) ensuring the expert reports are drafted observing information confidentiality; and (v) any other measures imposed by law in order to ensure the disclosed information confidentiality.
Disclosure of evidence included in the file of the competition authority. The general rule is that the court can order the disclosure of evidence included in the file of the competition authority. When the competition authority issues a fining decision, the court will be able to request to the competition authority the documents of the investigation file on which the decision was based in the settlement of claims for compensation. To this end, by receiving these documents, the court will ensure observance of confidentiality of business secrets and other classified information.
The court may order the disclosure of the following categories of evidence only after a competition authority, by adopting a decision or otherwise, has closed its proceedings:
(i) information prepared by a party in the proceedings before a competition authority specifically;
(ii) information that the competition authority has drafted and sent to the parties in the course of its proceedings; or
(iii) withdrawn settlement submissions.
Disclosure of leniency or settlement submissions. It should be noted that, for the purpose of actions for damages, Romanian courts cannot order a party or a third party to disclose any of the following categories of evidence: (i) leniency statements and (ii) settlement submissions. That being said, a plaintiff may present a reasoned request that the court accesses the evidence referred to in above for the sole purpose of ensuring that their contents correspond to the substantial definitions of such proceedings (i.e., leniency and settlement) mentioned in EGO 39. In that assessment, the court may request assistance only from the competition authority.
The parties to English proceedings must generally disclose the existence of all documents which are or have been in their control, and which harm or support their own or another party’s case.
Following the implementation of the Damages Directive, a party cannot be required to disclose either a settlement submission made to a competition authority which has not been withdrawn or a cartel leniency statement. A prohibition on disclosure also applies to a competition authority’s investigation materials until after the investigation is closed.
A party is entitled to withhold privileged documents from inspection by the other side. The most important category of privilege is “legal professional privilege”. This includes “legal advice privilege”, which protects confidential communications between a lawyer (whether in-house or external) and his client which come into existence for the purpose of giving or receiving legal advice, and “litigation privilege”, which protects confidential communications between a client and its lawyer, or between a client (or its lawyer) and a third party which come into existence for the dominant purpose of obtaining information or advice in connection with the conduct of the litigation.
Documents cannot be withheld from inspection on grounds of confidentiality. In practice, the confidentiality of commercially-sensitive documents is commonly safeguarded by disclosing them into a “confidentiality ring”, which restricts access to a limited number of persons who are typically required to sign confidentiality undertakings. Additional protective measures may be taken in respect of hearings, such as asking the court to go into private session while a confidential document is referred to.
Disclosure can also be sought against third parties, but the applicant must satisfy the court or CAT that the documents sought are likely to support its case or harm another party’s case and that disclosure is necessary to dispose fairly of the claim or to save costs. Following implementation of the Damages Directive, the English courts/CAT cannot make a disclosure order addressed to a competition authority in respect of documents included in the authority’s file unless satisfied that no-one else is reasonably able to provide them.
In proceedings before the High Court, the parties must file disclosure reports and seek to agree a proposal for disclosure before the first case management conference (“CMC”). The court will then choose from a “menu” of disclosure options to determine the appropriate disclosure order. Since 1 January 2019, a new disclosure pilot scheme has applied to cases before the Business and Property Courts. This is intended to be an entirely new scheme of disclosure under which the parties (and their representatives) cooperate in order to assist the court in determining the scope of disclosure that is required in the most efficient way possible. However, the new scheme does not currently apply to competition damages actions unless the court makes a specific order to that effect.
In proceedings before the CAT, the procedure is less prescriptive. The CAT will determine whether or not a disclosure report is appropriate at the first CMC, and then decide what orders to make in relation to disclosure at a subsequent CMC.
In principle, the parties shall provide the information needed for the case and the files of any trial in Colombia are public information and as such, they can be accessed by any interested party. Nevertheless, the law provides several rules that established that certain information is confidential or reserved, such as the information related to intellectual property, personal information or information that might affect the right of intimacy, and business secrecy.
In these events, the party can argue that the information is reserved and provide the rule of law that supports such reserve, in order to not be forced to disclose it. The judge will decide if the information is indeed reserved or if it shall be submitted.
In any case, the party might request that if the information to be submitted is kept in a reserved file that could not be accessed by any third party.
Even though a party usually must provide to the other side information that falls within the scope of discovery under Rule 26(b) of the Federal Rules of Civil Procedure, a party still can move the court for a protective order so that the party’s opponent is precluded from publicly disclosing the information. A court ‘may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense’ by, for example, ‘designating the persons who may be present while the discovery is conducted’ or ‘requiring that a deposition be sealed and opened only on court order.’ Fed R Civ P 26(c)(1)(E)-(F).
For a party to compel disclosure, the document in question must fall within the scope of discovery under Rule 26(b). Namely, the document must relate to a ‘nonprivileged matter that is relevant to any party’s claim or defense and’ the costs associated with the discovery of said document must be ‘proportional to the needs of the case.’ Fed R Civ 26(b). If the document meets these requirements, then it must be disclosed through the procedures set forth in Rule 34. Rule 34(a) provides that the ‘responding party’ must:
‘produce and permit the requesting party … to inspect, copy, test, or sample … any designated documents or electronically stored information … stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form….’
Fed R Civ P 34(a)(1)(A).
It is also important to note that when producing documents, ‘[a] party must [do so] as they are kept in the usual course of business or must organise and label them to correspond to the categories in the request.’ Fed R Civ P 34(b)(2)(E)(i). For ‘[e]lectronically [s]tored [i]nformation,’ specifically, a party, ‘[u]nless otherwise stipulated or ordered by the court… must produce it in a form… in which it is ordinarily maintained or in a reasonably usable form….’ Fed R Civ P 34(b)(2)(E)(ii).
Regarding government documents, litigants are permitted to use subpoenas to demand their disclosure so long as the information is (i) ‘nonprivileged’ and (ii) probative of a ‘party’s claim or defense.’ Fed R Civ P 26(b). Regarding third party documents, Rule 34(c) grants litigants the power to subpoena them so long as the subpoena complies with Rule 45’s requirements. Namely, Rule 45 provides that a valid subpoena must not ‘subject a person to undue burden.’ Fed R Civ P 45(b). Importantly, even if the subpoena complies with Rule 45, a party seeking documents from a third party faces the added hurdle that the court may refuse to compel discovery unless the documents meet an even more stringent version of the normal Rule 26(b) relevance requirement. See Zukoski v Philadelphia Electric Co, Civ A No 93-4780, 1994 WL 637345, at *3 [ED Pa Nov. 14, 1994].
Several types of privilege may prevent the disclosure of documents. These include (i) the attorney-client privilege, which protects communications between the attorney and their client (but not the underlying facts) (ii) the work product privilege, which protects attorney work product created in anticipation of litigation; and (iii) the common interest doctrine, which allows attorneys representing different clients with a common legal interest to maintain the attorney-client privilege while still sharing privileged information between each other. In the antitrust context there are two primary ways that the common interest privilege is invoked: (i) when entities are merging, counsel for each entity can share their respective analyses of the regulatory obstacles that might result from the merger while still maintaining the privilege (see, eg, Hewlett-Packard Co v Bausch & Lomb, Inc, 115 FRD 308 [ND Cal 1987]); and (ii) through joint defense agreements. See, eg, Sony Electronics, Inc v Soundview Technologies, Inc, 217 FRD 104 [D Conn 2002].