Kelkoo v Google

Factual and Procedural Background

This opinion concerns an application by Plaintiff to fix confidentiality arrangements for disclosure in substantial competition law proceedings against Defendant. Plaintiff, a provider of online shopping comparison services, alleges that Defendant unlawfully abused a dominant position by favouring its own shopping comparison service and disadvantaging Plaintiff, causing significant loss. The claim is valued at over £1 billion, with all elements disputed.

The application arose from Defendant’s disclosure of two European Commission decisions, redacted and adverse to Defendant, relating to substantial fines but subject to appeals. Plaintiff sought less redacted versions initially to amend its Particulars of Claim. Both parties agreed on a confidentiality order establishing two confidentiality rings: an inner ring including Plaintiff’s in-house counsel and external advisers, and an outer ring comprising senior personnel. Disputes remain over proposed modifications to this regime and directions on redactions.

Legal Issues Presented

1. Whether the confidentiality order should include a requirement for written justification by the disclosing party when designating documents as inner or outer ring information, particularly for documents over 5 and 10 years old.
2. Whether additional redacted versions of disclosed documents should be prepared for the outer ring and general disclosure, with detailed directions on permissible redactions including colour coding and justifications.
3. How to balance the principle of natural justice and fairness to the parties with the principle of open justice and the protection of highly confidential commercial information.

Arguments of the Parties

Appellant's Arguments (Plaintiff)

• Advocated for modifications requiring disclosing parties to provide written summaries and justifications for inner ring designation of documents over 5 years old and outer ring designation of documents over 10 years old at the time of disclosure.
• Proposed that further redacted versions of documents be prepared to facilitate disclosure at different confidentiality levels, with detailed rules on redactions and a colour coding system.
• Relied heavily on the Court of Appeal decision in OnePlus Technology (Shenzen) Co Ltd v Mitsubishi Electric Corp [2020] EWCA Civ 1562, emphasizing that the onus remains on the disclosing party to justify confidentiality designations.
• Asserted that Defendant had a pattern of over-designating documents as highly confidential in other proceedings, necessitating stricter controls to enable effective participation and public understanding.
• Highlighted the high value of the litigation and Defendant’s substantial means to bear the costs of the proposed modifications.

Appellee's Arguments (Defendant)

• Opposed the requirement for written justification at the point of disclosure, contending it was unnecessary and would impose an undue burden.
• Argued that the onus to justify confidentiality designations arises only if challenged, not at initial disclosure.
• Emphasized the sensitive commercial nature of some documents, particularly those concerning search algorithms, which are critical trade secrets.
• Contended that Plaintiff’s proposals would increase costs and encourage satellite litigation over confidentiality designations.
• Proposed a more flexible approach allowing the receiving party to request suitably redacted versions of inner ring documents for circulation in the outer ring, with requests not to be unreasonably refused.
• Denied any over-designation of documents in prior proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the primary focus on natural justice—fairness to the parties to enable effective participation—over the principle of open justice at this early stage. It considered the proposed modifications requiring written justification for confidentiality designations at disclosure to be unsupported by the leading authority, OnePlus, which allows initial designation without written justification but places the burden on the disclosing party upon challenge.

The court rejected Plaintiff’s argument that OnePlus mandated written justification at disclosure, interpreting the case as endorsing a staged approach where initial designations are made without detailed justification, with challenges resolved by the court. The court found that the inner ring proposed here, including Plaintiff’s in-house counsel and technical expert, would function effectively as an initial filter.

The court acknowledged concerns about over-designation raised by Plaintiff but noted the absence of any judicial finding of misconduct in related proceedings and declined to resolve disputes about Defendant’s conduct in other cases on this application.

The court identified significant risks that Plaintiff’s proposed modifications would create incentives for unnecessary confidentiality disputes, increasing costs and complexity without clear benefit. It found the burden of providing written summaries and justifications for potentially large volumes of documents, many of which may be irrelevant or obviously designated, to be disproportionate and inconsistent with the overriding objective of saving expense.

The court also considered the early procedural stage, with no amended pleadings or disclosure orders in place, and the limited information about the nature and relevance of documents likely to be affected. It concluded that the proposed modifications were premature and that the confidentiality regime should remain flexible, allowing for variation as the case progresses.

Regarding redactions, the court rejected Plaintiff’s proposal for mandatory preparation of multiple redacted versions with detailed directions and colour coding, finding it an unnecessary and costly straitjacket at this stage. It preferred Defendant’s approach, which allows the receiving party to request suitably redacted versions for the outer ring on a reasonable basis.

Overall, the court balanced the need to protect highly confidential commercial information, particularly sensitive algorithmic data, with the parties’ interests in fairness and efficient case management, concluding that the agreed confidentiality order without Plaintiff’s proposed modifications best serves these objectives at this stage.

Holding and Implications

The court DISMISSED Plaintiff’s application for modifications to the confidentiality order requiring written justifications of document designations at disclosure and detailed redaction directions.

The confidentiality order will reflect the agreed provisions between the parties, incorporating Defendant’s suggested approach to redactions, and will include an express permission to apply for future variations as the case develops.

The decision maintains the status quo confidentiality regime, emphasizing proportionality, cost-efficiency, and flexibility in managing confidential disclosures in complex competition law proceedings. No new legal precedent was established; rather, the court applied existing principles to the specific facts and procedural context.