LD Hamburg, 3 November 2023, order on confidentiality and access restriction, UPC_CFI_54/2023

The applicant does not have to prove to the full conviction of the court that the confidential information for which protection is requested are trade secrets. It is sufficient if the court considers it predominantly probable that the information are trade secrets.

Confidential information that was already submitted to the representatives of the other party outside of the court proceedings cannot be protected pursuant to Rule 262A RoP, even if the submission of this confidential information was combined with confidentiality requirements. In such case, the interests of the party who filed the confidentiality request do not prevail.

There is a difference between an application pursuant to Rule 262.2 and Rule 262A RoP. An application pursuant to Rule 262A RoP concerns confidentiality in relation to the other party of the proceedings. An application pursuant to Rule 262.2 RoP relates to confidentiality in relation to third parties. Thus, information that cannot be protected under Rule 262A RoP due to disclosure to the other party outside of the court proceedings can still be protected against disclosure to third party under Rule 262.2 RoP.

Rule 262A allows the restriction of access to specific persons. This is not limited to persons within the other party, but may also include persons within affiliates of the other party.

A restriction of access to three persons within a party can be sufficient and appropriate.