Commercial Disputes: How Can I Secure An Order Against Disclosure Of Sensitive Information?

Disclosure of relevant documents and information is vital to the litigation process, but there are many instances where a party has good reason to withhold information from the disclosure process and/or from public disclosure. The award-winning commercial litigation lawyers at ParrisWhittaker in Bahamas and across the Caribbean, are highly experienced in disclosure issues and commercial disputes.

What is an order against disclosure?

Typically known as non-disclosure orders (alternatively, ‘protective orders’), an order against disclosure prohibits sensitive information or documentation from being disclosed during the discovery process or to prevent disclosure outside of the proceedings.

There are good reasons for seeking such orders, for instance national security, trade secrets or privacy reasons. An order can even be made preventing the disclosure of the existence of the proceedings.

Where the court makes an order against disclosure, the party against whom a protective order is made is prohibited from using the specific information disclosed within proceedings for other purposes – or risk court sanctions.

Why prohibit disclosure?

A party to litigation may need to apply for a non-disclosure order for several reasons, including:

To protect trade secrets or confidential business information: For example, a dispute may involve allegations that one party has misappropriated trade secrets. Here, the court may issue an order barring the disclosure of confidential information during the litigation process.

A party to a commercial dispute may need to protect sensitive business information, eg financial records or customer/client lists and require a protective orders to prevent disclosure. The details of certain agreements between the parties in dispute, such as confidential settlement agreements, may also need to be protected from the risk of public disclosure.

Personal privacy – Privacy is an important issue for the parties and the courts. A litigant may require an order protecting against the disclosure of sensitive personal information, which can range from medical records, financial information or intimate details about the individual’s private life. The court may accede to an application for an order against disclosure to safeguard the litigant’s privacy.

Intellectual property: A business’s IP and technical knowledge is invaluable and requires adequate effective protection, which is why IP disputes are ‘big business’ – the outcome of which can make or break a business. In the early stages of IP disputes, such as patent, trademark or copyright cases, a business may ask the court for an order preventing the disclosure of confidential IP data or technical information.

Public interest or national security – Public disclosure of information may not, in some cases, be in the public interest. Where there are genuine concerns, the courts can prohibit such disclosure if it could harm public safety, undermine national security or even jeopardize ongoing investigations.

How can I secure a non-disclosure order?

It is important to be mindful that the court will not readily grant an order against disclosure, given that it can represent a departure from the general principle of open justice.

An applicant seeking an order prohibiting information being disclosed within, or outside of proceedings will therefore need to demonstrate good cause, setting out their reasons for claiming the right to withhold disclosure (under r28.14 Supreme Court Civil Procedure Rules 2022).

When excising its discretion whether or not to make the order sought, the court will balance the need for confidentiality against the interests of transparency and fairness in the judicial process.

If a protective order is made, a party breaching the order will face court sanctions such as a fine or potential contempt proceedings.

Any business who is concerned about privacy and confidentiality issues should take urgent specialist advice  from experienced commercial litigation lawyers. Get in touch with ParrisWhittaker on info@parriswhittaker.com or +1.242.352.6112.