Dr Reddy’s Laboratories (UK) Limited & Ors. v Warner-Lambert Company LLC

Confidentiality restrictions in patent litigation must be justified by balancing the receiving party’s need for access against the interests of the disclosing party and third parties. An external-eyes-only tier is exceptional, and there is no universal form of order. Different information may require different protection.

Where external solicitors and counsel already owe duties to the court and equitable duties of confidence, a written acknowledgment may sufficiently reinforce those obligations. A broader undertaking restricting future work requires separate justification. The risk of inadvertent use, the breadth and duration of the restriction, the age and inherent confidentiality of the material, and the recipients’ professional duties are relevant. A three-year restriction on external lawyers and experts advising pharmaceutical companies was unjustified on the evidence.

The judgment concerned disclosure arrangements in consolidated inquiry claims involving confidential information about pharmaceutical pricing and reimbursement schemes. The parties had been unable to agree the terms of a confidentiality ring comprising a Basic Tier and an attorney-eyes-only tier.

The issues included whether certain medicine margin scheme and Pharmaceutical Price Regulation Scheme documents should be disclosed to particular parties, whether external lawyers and experts should give written confidentiality undertakings, and whether they should be barred from involvement in pharmaceutical pricing strategy for three years. The court determined those disclosure and confidentiality issues at a case management hearing.

1. Confidentiality framework. The court adopted the principles drawn together in Oneplus Technology (Shenzen) Co Ltd v Mitsubishi Electric Corporation [2020] EWCA Civ 1562. The court must balance access to relevant documents against protection of confidential commercial and technical information. External-eyes-only disclosure is exceptional, there is no universal form of order, and protection must reflect the value, sensitivity and potential misuse of the information.
2. MMS and PPRS documents. The information was highly confidential and justified heightened protection in an AEO Tier at that stage. The documents were not to be provided to Dr Reddy’s because no relevance to its inquiry claim had been identified. Pfizer could receive them within the AEO Tier, with the position capable of reconsideration if relevance later arose.
3. External lawyers. Solicitors and counsel already owed duties, enforceable by the court, not to use or disclose confidential information inconsistently with the order. Requiring them to sign the proposed undertakings would add no necessary protection. A written acknowledgment that they had read the order and that its obligations reflected their existing duties was sufficient for both tiers.
4. PSU undertakings. The proposed three-year restriction on involvement in pricing strategy was not justified. The restriction was exceptionally broad, applied to any pharmaceutical company, and extended beyond the proceedings. Recipients already owed duties of confidence and were professionally experienced in separating information obtained in different matters. The material was also several years old, and continuing contractual confidentiality did not establish that its inherent sensitivity and risk of prejudice remained undiminished.
5. The MMS and PPRS documents were therefore disclosed to Pfizer within the limited AEO Tier. No external solicitor, counsel or expert was required to provide a PSU undertaking.