Confidentiality club

The confidentiality club refers to the set of measures by which the court restricts access to an exhibit containing a trade secret to a limited number of persons. The adversarial debate can thus take place without the whole opposing party discovering the secret. Articles L. 153-1 and L. 153-2 of the French Commercial Code organise it, together with the corresponding provisions of the Code of Civil Procedure. These texts are available on Légifrance. In short, the confidentiality club answers a classic dilemma: proving without revealing.

The measures of the confidentiality club

First, the judge may examine the exhibit alone. If necessary, the judge orders an expert examination or seeks the opinion of a person authorised to assist. The judge thus decides whether the exhibit is necessary to the resolution of the dispute. Second, the judge may limit the communication to certain elements of the exhibit or order a summary of it. The judge may also restrict access, for each party, to one natural person and one person authorised to assist or represent it. Third, the hearing may be held in chambers. The judge moreover adapts the reasoning of the decision so as not to reveal the secret. The persons who had access to the exhibit remain bound by secrecy, even after the proceedings.

The confidentiality club in patent litigation

The mechanism serves in trade secrets disputes. It also serves in patent litigation. It frames, for example, the communication of documents seized during a saisie-contrefaçon and placed under sequestration. It likewise protects the production of comparable licences in FRAND disputes. It finally applies to the accounting data used to assess damages. Before the Unified Patent Court, Rule 262A of the Rules of Procedure provides a comparable device. Access may be limited there to a small number of persons, including at least one natural person from each party.

Key points

In practice, the confidentiality club must be requested as soon as the exhibit is produced or its communication is sought. The request precisely identifies the secret passages and justifies their character. Too narrow a club hampers the opponent’s defence. Too wide a club, conversely, deprives the protection of its meaning. The judge therefore arbitrates between the two. The firm implements these measures for claimants and defendants, as presented on the pages trade secrets attorney and saisie-contrefaçon attorney.