Infederation Ltd v Google LLC & Ors

Confidentiality rings in competition litigation are exceptional. They must be confined to the narrowest extent possible and carefully scrutinised to prevent unfairness. Where a party relies on highly technical confidential evidence in support of an application that may dispose of substantial claims, the opposing party may require independent expert assistance to understand and challenge that evidence. An expert’s commercial involvement in the relevant industry does not automatically justify exclusion where the expert is independent, gives appropriate undertakings and is not alleged to be acting in bad faith. The court may instead permit the relying party to withdraw the relevant evidence. Confidentiality claims should also be carefully assessed by solicitors, since restrictions on inspection are exceptions to ordinary disclosure.

Foundem brought competition proceedings alleging that Google had abused a dominant position through the operation of search algorithms and related conduct. The claim was partly based on a European Commission infringement decision and partly advanced on a standalone basis. Google applied to strike out or obtain summary judgment on the standalone claims and relied on confidential technical evidence.

Foundem sought admission of an independent search-engine-optimisation expert, Mr Klöckner, to legal-eyes-only and restricted legal-eyes-only confidentiality rings. Google accepted admission to the outer ring but opposed access to the more restricted material, relying on the sensitivity of its algorithms and Mr Klöckner’s industry interests. The issue was whether his admission was necessary for a fair and effective response to Google’s evidence.

1. Outcome. The application was granted conditionally. Google was given time to decide whether to withdraw reliance on specified parts of its evidence. If it maintained reliance on the relevant technical evidence, Mr Klöckner was to be admitted to the LEO and RLEO rings until further order, subject to confidentiality undertakings and submission to the jurisdiction of the court for enforcement.
2. Applicable principles. Confidentiality arrangements are exceptional, must be limited to the narrowest extent possible and require careful scrutiny to ensure that they do not produce unfairness. These principles applied in competition proceedings involving rival commercial interests, as well as in intellectual-property litigation. The court must decide admission disputes on the particular circumstances.
3. Need for expert access. Google had chosen to rely on substantial technical evidence, including confidential evidence from technical witnesses, rather than relying only on the pleadings or the Commission decision. Foundem’s lawyers could not meaningfully understand, test or challenge that evidence without expert assistance. The evidence went beyond explaining what had been provided to the Commission and addressed the operation, aims and application of Google’s algorithms.
4. Expert’s independence. Mr Klöckner’s specialised expertise, limited shareholding in a related company and historic advisory work did not justify exclusion. Google did not allege that he would deliberately breach his undertaking. His position was comparable to that of the external lawyer admitted in IPCom GmbH & Co v HTC Europe Co Ltd [2013] 52 (Pat). He would have to determine conscientiously what he could do in other SEO matters after seeing the confidential material.
5. Alternative course. Google could avoid admission by abandoning reliance on the relevant portions of the evidence. It could not serve recast or alternative evidence without permission. The court declined to determine confidentiality arrangements for the remainder of the action because the proceedings, disclosure and EU litigation might materially change.
6. Postscript. Excessive confidentiality designations waste time and costs. Solicitors should investigate and advise on the proper limits of confidentiality, bearing in mind the protection already afforded to disclosed documents by CPR rule 31.22.