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Rule 191: Application for order to communicate information

Court of First Instance - Mannheim (DE) Local Division, Order dated 20/10/2024, Sling TV L.L.C., DISH Technologies L.L.C. (Case/ Registry number: UPC_CFI_471/2023, ORD_47058/2024)
Example of decision on application for order to communicate information: "The subject matter of the transmission of information can only be specifically named information; a non-specific search is generally not possible. The sole purpose of the order to transmit information within the meaning of Rule 191 Alt. 2 of the Rules of Procedure serves the sole purpose of providing the applicant with the information required. By contrast, it cannot, in principle, be used to encourage the other party to make a correct statement regarding a fact on which the applicant relies in support of the claims or defences asserted, if the applicant is of the opinion that the other party’s statement is incorrect. Rather, it is for the court, in the context of its evaluation of the parties’ respective factual arguments and the evidence offered, to assess in due course whether a disputed fact is true. In this context, the party that believes it needs the fact can assert this fact and offer evidence for it, even if it is not certain but has good reasons to believe it to be true, without being able to be accused of violating a possible duty of truth. In this context, an order for the disclosure of information is generally not considered as long as the other party has not commented on the applicant’s submission, for which it can generally exhaust the deadlines applicable for commenting on the submission. The order under R. 191 Alt. 2 RP is at the discretion of the court and must not be disproportionate. In exercising its discretion, the circumstances of the individual case must be taken into account, including the mutual interests and the principle of efficient proceedings (see (on the order to produce evidence) Court of Appeal, Order of 24 September .2024, UPC_CoA_298/2024, UPC_CoA_299/2024, UPC_CoA_300/2024 paras. 47, 53). On the part of the requesting party, there is a particular interest in obtaining the information, and on the part of the respondent, there is a particular interest in protecting confidential information. For reasons of proportionality and in order not to overplay the distribution of the burden of presentation and proof (on this point, Court of Appeal, order of 26 February 2024, UPC_CoA_335/2023, GRUR 2024, 527, para. 94), an order for the transmission of information within the meaning of R. 191 Alt. 2 of the Rules of Procedure must not result in inadmissible fishing expeditions. An order to provide information within the meaning of Rule 191(2) of the Rules of Procedure during the legal dispute is regularly ruled out if the information sought is not relevant to the claims or objections pursued in the legal dispute. In this case, the order to provide such information is regularly at least disproportionate."

Court of First Instance - Paris (FR) Local Division, Order dated 02/08/2024, HEWLETT-PACKARD DEVELOPMENT COMPANY, L.P v. LAMA France (Case/ Registry number: App_41706/2024, ORD_43600/2024)
Example of decision on the application for order to communicate information: "1.The Court notes that rule 191 RoP can be invoked at different stages of the procedure, in order to compel parties to submit information during the proceedings or at the final decision stage. 2. The Court recalls that an application to communicate information pursuant to R. 191 RoP must be sufficiently justified and proportionnate to be granted. 3. Communicated information can be subjected to confidentiality measures under R. 262A RoP."

Court of First Instance - Paris (FR) Local Division, Order dated 31/07/2024, Dexcom France SAS, Dexcom Inc., Dexcom International Limited, Abbott Diabetes Care Inc. v. Abbott Diabetes Care Inc. (Case/ Registry number: App_36267/2024, ORD_36398/2024)
Example of decision on the application for order to communicate information: "1. The request for disclosure of information on the basis of R.191 RoP may be admissible in ongoing proceedings and even before the existence of an infringement has been decided, should this be necessary for the investigation of the case at that stage of the proceedings.
2. The Court points out that a request for information under R.191 RoP must be sufficiently justified and proportionate in order to be granted."

Court of First Instance - Mannheim (DE) Local Division, Order dated 14/02/2024, Panasonic Holding Corporation v. Guangdong OPPO Mobile Telecommunications Corp. Ltd., OROPE Germany GmbH (Case number UPC_CFI_210/2023 ORD_)
Example of decision on the procedure for protecting confidential data where there is a license agreement between the parties : “In doing so, the court has taken into consideration that there is typically a recognisable need for confidentiality of business-related information contained in licence agreements. The procedure described in the steps below enables the parties to obtain comprehensive protection of trade secrets and allows the parties to submit the documents in the protected proceedings even without the need of a court order to produce them. If, according to the parties’ consensus, the clauses usually contained in licence agreements do not permit production until a court order is issued, this has to be understood before the background that such orders aim at involving the respective licence agreement partner into the proceedings and its confidentiality regime prior to any production in the court proceedings. This interest is fully taken into account by the confidentiality regime which is hereby established, so that a court order to produce the respective documents does not appear appropriate for the time being. Rather, the agreement of the respective licence agreement partner must be obtained on this basis if necessary or, in the event of a refusal, a separate decision on the production must be made by the party concerned. The interests of the licence agreement partner of the party wishing to submit a licence agreement in the proceedings must therefore be safeguarded by the respective party. In this context, it has to be taken into consideration that the documents in question are those that the party wishes to submit and that it is able to contact the third party concerned directly and efficiently. The court would first have to involve the third party, who is generally not represented by a representative in the proceedings, in the proceedings via the often time-consuming route of serving court documents abroad in accordance with the Hague Service Convention or the EU Regulation on Service of Documents. It also appears appropriate to arrange for the third party’s statement to be provided via the party, because the party itself has contributed to making it more difficult to produce documents in court proceedings by concluding corresponding contractual clauses.”