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Trade secrets to remain secret in court

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16/01/2019
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Invoking trade secrets in court can be a delicate choice. Proving a company's economic loss in a judicial expertise but risking its cost structure being made public, refer to a cooperation agreement that was intended to be kept secret, claim damages for breach of a confidentiality undertaking in court proceedings that might cause additional publicity, ...  
 
New civil procedure rules in Belgium should reassure parties on confidential information used in litigation. One may now request the court to label evidence as confidential trade secrets, thus prohibiting anyone involved in the proceedings (parties, lawyers, witnesses, experts, ...) to use or disclose said documents (violation leading to a fine).
 
More importantly, the court may limit the access to the documents (and even to the court hearings where they could be disclosed) to specific persons, at least one person per party though (in addition to the party's lawyer). Obviously when the counterparty is a competitor, the mere knowledge by this one person of information such as customer lists or prices may be considered as harmful, since trade secrets cannot be erased from that person's memory, but this is where the right to secrecy meets the right to a fair trial...
 
Since court decisions are public, judges may logically conceal all references to trade secrets in this public version, the full version remaining confidential.