Infederation Ltd v Google LLC & Ors

The court considered an application by the claimant (Foundem) for admission of an independent technical expert to inner confidentiality rings (LEO and RLEO) in competition proceedings concerning alleged abuses by Google under Article 102 TFEU and section 18 of the Competition Act 1998. The judge held that confidentiality rings are exceptional and must be narrowly confined, but that where highly technical, restricted evidence is relied on by a defendant in support of a strike-out/summary judgment application the claimant is entitled to expert assistance to understand and respond to that evidence.

Applying authorities including Al Rawi, Roussel Uclaf and IPCom, the court balanced Google’s legitimate interest in protecting trade secrets against Foundem’s right to a fair hearing. The judge concluded that Foundem’s proposed expert, an SEO specialist, should be admitted to the LEO and RLEO rings unless Google renounced reliance on the parts of its technical witness statements and exhibits that depended on LEO/RLEO material. The judge required appropriate undertakings from the expert, including consent to the court’s jurisdiction for enforcement, and gave Google a reasonable period to decide whether to withdraw or limit its reliance on the contested evidence.

Background and nature of proceedings:

• Foundem operates a vertical comparison search engine and issued proceedings alleging that Google abused a dominant position (Article 102 TFEU and section 18 Competition Act 1998). Part of Foundem's claim is a follow-on to the European Commission decision in Case AT.39740 Google Search (Shopping) and part is stand-alone, alleging various algorithmic penalties and discrimination. Google has an active strike-out/summary judgment application directed at Foundem's stand-alone claims.

The application before the court:

• Foundem sought permission for an independent expert (Mr Philipp Klöckner), an SEO consultant, to be admitted to the LEO and RLEO confidentiality rings so that he could examine restricted technical material relied on by Google and assist Foundem in opposing Google’s pending application and in future disclosure and trial preparation.

Issues framed by the court:

• Whether an external industry expert with commercial connections may be admitted to highly restricted confidentiality rings.
• How to balance the protection of Google’s highly confidential ranking signals and processes against Foundem’s right to know and challenge the evidence relied on against it.
• Whether Google could avoid disclosure to the expert by renouncing parts of its technical evidence relied on in support of its strike-out/summary judgment application.

Court’s reasoning and subsidiary findings:

• The court reviewed authority on confidentiality rings (including Al Rawi, Roussel Uclaf, IPCom, TQ Delta, McKillen, Unwired Planet and others) and concluded such arrangements are exceptional, must be narrowly tailored and scrutinised to avoid unfairness.
• The RLEO material was found to be highly sensitive (described as Google’s "crown jewels"). Google legitimately sought to prevent disclosure to commercial SEO advisors because of the risk that the signals might be used to "game" search results.
• However, Google had chosen to rely on detailed technical evidence, including witness statements and exhibits that included LEO/RLEO material, in support of its strike-out/summary judgment application. Foundem’s lawyers could not meaningfully respond to or challenge that evidence without specialist assistance.
• The court found that the expert evidence was necessary for fair response to Google’s technical evidence and that Foundem had reasonably searched for an available expert; other potential experts had declined due to commercial relationships with Google.
• The specific objections to Mr Klöckner (past advisory work and a small shareholding in a complainant company) were considered insufficient to bar him from the rings provided strict undertakings were given; the court drew an analogy with authorities permitting external lawyers/experts to see confidential material subject to undertakings.
• As a proportionate alternative, the court gave Google the choice to withdraw the contested portions of its technical evidence (or the parts that relied on LEO/RLEO material). If Google renounced reliance on those parts, admission of the expert to LEO/RLEO would not be ordered. If Google persisted in relying on the evidence, the court ordered that the expert be admitted to both rings subject to undertakings (including submission to the court’s jurisdiction for enforcement). The court also barred Google from serving recast or alternative evidence without leave and allowed Foundem to renew the application in that eventuality.
• The court declined to make wider orders about future disclosure or the rest of the proceedings because the action was at an interim stage and the EU litigation outcome might materially change the case.

Application allowed in part. The court held that, subject to appropriate confidentiality undertakings (including submission to the court's jurisdiction), Foundem’s proposed expert should be admitted to the LEO and RLEO rings to enable a fair response to Google’s technical evidence as relied on in its pending strike-out/summary judgment application. Alternatively, Google was permitted a reasonable period to renounce reliance on the parts of its technical evidence that depended on LEO/RLEO material, in which case no admission to the inner rings would be ordered. The order balances protection of Google’s trade secrets with Foundem’s right to a fair hearing.