Home » UPC decisions » Local Division » Duesseldorf Local Division » LD Duesseldorf, March 27, 2024, Procedural Order, UPC_CFI_355/2023

LD Duesseldorf, March 27, 2024, Procedural Order, UPC_CFI_355/2023

4 min Reading time

Key takeaways

When deciding an application to grant protection for the allegedly confidential information, the court has to weigh the right of a party to have unlimited access to the documents contained in the file, which guarantees its fundamental right to be heard, against the interest of the opposing party to have its confidential information protected. (Headnote 1)

A party seeking protection for confidential information has – in a first step – to put forward sufficiently substantiated arguments, why it believes the information concerned is to be protected. It is therefore not enough to have resort to general circumstances such as there being competition between the parties to the dispute. The court has to be put in a position to understand, why the applicant believes that the concrete information to be protected is vulnerable and confidential. It is therefore necessary to substantiate with regard to each redacted part of the written submissions, why this explicit part of the submission amounts to confidential information. (Headnote 2)

Once adequate explanation in that regard has been received, it is then for the court to decide, which extent of certainty has to be reached for the court to believe that the applicant’s allegations are true. The necessary level of persuasion that the information is confidential in nature may differ having due regard to the substance matter of the dispute. (Headnote 3)

In a further step, the court has to strike a balance between the adequate level of protection of said confidential information and the right of the claimant to have sufficient access to the information in order to exercise its right to be heard. In this context, R. 262A.6 RoP establishes with all desirable clarity as a ground rule of paramount importance that at least one natural person from each party and the respective lawyers or other representatives are to be granted access in order to ensure a fair trial. When deciding upon the level of restriction, again the circumstances of the case are to be taken into consideration. Whereas in some cases a restriction may be more important to safeguard the confidential information concerned, in other cases the right to full access to the files of a party trumps the interest of protection. (Headnote 4)


Duesseldorf Local Division

UPC number


Type of proceedings

Infringement action


Claimant: FUJIFILM Corporation, Tokyo, JP

Defendants: Kodak GmbH, Stuttgart, DE; Kodak Graphic Communications GmbH, Stuttgart, DE; Kodak Holding GmbH, Stuttgart, DE


EP 3 594 009

Body of legislation / Rules

Art. 58 UPCA, Rule 262A RoP

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