Kraft Foods Group Brands LLC v Bega Cheese Limited (No 3) [2018] FCA 1023

Kraft Foods Group Brands LLC v Bega Cheese Limited (No 3) [2018] FCA 1023

Because the confidential documents were to be accessed only by nominated external legal practitioners who would give express undertakings to preserve confidentiality, and no good reason was shown to reject or further confine those undertakings, the risk of a mistake or mishap did not justify Mondelez's more restrictive single-copy regime. The factors relevant to expanding a confidentiality club in AstraZeneca were not relevant in the same way to access by independent external legal advisers to relevant confidential subpoenaed documents. Orders were therefore made substantially in the form proposed by Kraft.

Jurisdiction
Australia
Judgment Date
06 July 2018
Procedural Posture
Practice and Procedure Dispute Concerning Subpoenaed Confidential Documents / Interlocutory Determination of the Form of Confidentiality Orders and Undertakings for Access to Documents Produced by Non Party Mondelez Pursuant to Subpoena
Outcome
Orders made substantially in the form contended for by Kraft, requiring Mondelez to provide unredacted copies of the confidential agreements to nominated external legal advisers subject to confidentiality undertakings.
Legal Topics
['subpoena to Non Party' 'confidential Documents' 'trade Secrets' 'implied Undertaking' 'express Confidentiality Undertakings' 'access by External Legal Advisers']
['practice and Procedure' 'evidence' 'confidentiality' 'commercial and Corporations'] ['subpoena to Non Party' 'confidential Documents' 'trade Secrets' 'implied Undertaking' 'express Confidentiality Undertakings' 'access by External Legal Advisers']

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Procedural Posture

Practice and Procedure Dispute Concerning Subpoenaed Confidential Documents / Interlocutory Determination of the Form of Confidentiality Orders and Undertakings for Access to Documents Produced by Non Party Mondelez Pursuant to Subpoena

Legal Issues

  1. 1 ["What form of order and undertaking should govern access by the parties' external legal advisers to unredacted confidential documents produced by non-party Mondelez pursuant to subpoena." "Whether the risk of mistake or mishap justified Mondelez's proposed restrictive regime, including provision of only one copy and specific storage and copying restrictions." 'Whether principles concerning admission to a confidentiality club in AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 were relevant to the proposed access by external legal practitioners.']

Ratio Decidendi

Because the confidential documents were to be accessed only by nominated external legal practitioners who would give express undertakings to preserve confidentiality, and no good reason was shown to reject or further confine those undertakings, the risk of a mistake or mishap did not justify Mondelez's more restrictive single-copy regime. The factors relevant to expanding a confidentiality club in AstraZeneca were not relevant in the same way to access by independent external legal advisers to relevant confidential subpoenaed documents. Orders were therefore made substantially in the form proposed by Kraft.

Court Disposition

Orders made substantially in the form contended for by Kraft, requiring Mondelez to provide unredacted copies of the confidential agreements to nominated external legal advisers subject to confidentiality undertakings.

Orders

  • ["On or before 4pm on 6 July 2018, subject to Mr Peter Hallett of the Applicants' solicitors providing an undertaking substantially in the form contained in the reasons, Mondelez Australia (Foods) Ltd provide to Mr Peter Hallett an unredacted copy of each of the agreements in which Mondelez claims confidentiality...