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29 March 2021Ranjan Narula and Suvarna Pandey

Rules of the club

The objective of forming a ‘Confidentiality Club’ during patent or trade secret litigation matters has become a standard protocol to keep the business-sensitive documents/information confidential to the parties involved in the litigation. The idea is to limit access to documents to a specific set of people bound by the obligation to maintain confidentiality.

The provision of the Confidentiality Club, introduced by the Delhi High Court Act 1966 through amendments in 2018 in its practice rules for the lawsuits where the Delhi High Court is the court of the first instance, is defined as follows: “17. Confidentiality Club—when parties to a commercial suit wish to rely on documents/information that is commercially or otherwise confidential in nature, the court may constitute a Confidentiality Club so as to allow limited access to such documents/information.

“In doing so, the court may set up a structure/protocol for the establishment and functioning of such club, as it may deem appropriate. An illustrative structure/protocol of the Confidentiality Club is provided in Annexure F. The court may appropriately mould the structure/protocol of the club, based upon the facts and circumstances of each case.”

The rules state that each party shall nominate not more than three advocates, who are not, and have not been, in-house lawyers of either party, and not more than two external experts, who shall constitute the Confidentiality Club.

The post discusses the decision of a single judge of the Delhi High Court in an standard-essential patent (SEP) infringement suit between InterDigital Technology (plaintiff) and Xiaomi (defendant) (CS [COMM]-295/2020 and IA No. 6441, 2020).

In summary, the parties did not disagree on forming the Confidentiality Club but its structure. InterDigital has proposed a “two-tier” club classifying documents and their access as follows:

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