Confidentiality club

The confidentiality club refers to the set of measures by which the judge restricts access to a document containing a trade secrets to a limited number of persons, so that the adversarial debate can take place without the secret being disclosed to the opponent as a whole. It is organised by Articles L. 153-1 and L. 153-2 of the Commercial Code, which can be consulted on Légifrance, and by the corresponding provisions of the Code of Civil Procedure. The confidentiality club answers a classic dilemma: proving without revealing.

The measures of the confidentiality club

First, the judge may examine the document alone and, if considered necessary, order an expert report or seek the opinion of a person authorised to assist, in order to decide whether the document is necessary to resolve the dispute. Next, the judge may limit the disclosure or production of the document to certain of its elements, order its disclosure in the form of a summary or restrict access to one natural person and one person authorised to assist or represent them for each party. Finally, the judge may decide that the hearing will be held in chambers and adapt the reasoning of the decision so as not to reveal the secret. Persons who have had access to the document are bound by a confidentiality obligation that continues after the proceedings.

The confidentiality club in patent litigation

The mechanism is used in trade secret disputes, but also in patent litigation: disclosure of documents seized during a saisie-contrefaçon and placed under seal, production of comparable licences in FRANDdisputes, assessment of damages on the basis of accounting data. Before the Unified Patent Court, Rule 262A of the Rules of Procedure organises a comparable mechanism, access being restrictable to a limited number of persons, including at least one natural person from each party.

Key points

In practice, the request for a confidentiality club must be made as soon as the document is produced or its disclosure requested, precisely identifying the secret passages and justifying their character. A club that is too narrow hampers the opponent’s defence, a club that is too wide empties the protection of its meaning: the judge arbitrates between the two. The firm implements these measures for applicants and respondents, as presented on the pages trade secrets lawyer and saisie-contrefaçon lawyer.