Merck KGaA v Merck Sharp & Dohme LLC & Ors

Merck KGaA v Merck Sharp & Dohme LLC & Ors

The court held that, given the existence of a binding contractual confidentiality agreement and the absence of a document-specific, justified application by MSD, the open justice principle does not override the parties’ agreed restrictions. MSD remains bound by the agreement and cannot use the Confidential Documents for collateral purposes unless it makes a targeted application identifying specific documents and purposes, justifying release from confidentiality by reference to special circumstances or a good reason. The court will not conduct a blanket or superficial review of confidentiality and will not release MSD from its obligations absent such an application.

Parties
Claimant: Merck KGaA; Defendants: Merck Sharp & Dohme LLC & others
Jurisdiction
England and Wales
Judgment Date
15 May 2026
Procedural Posture
Civil Commercial/intellectual Property / Post Trial Application Regarding Confidentiality and Use of Disclosed Documents
Outcome
Application granted in part; confidentiality order made as sought by Merck, subject to MSD’s right to apply for use of specific documents in future if justified.
Legal Topics
Confidentiality of Disclosed Documents, Collateral Use of Disclosed Documents, Open Justice Principle, Contractual Obligations in Litigation, Trade Secrets Protection
Intellectual Property Contract Law Civil Procedure Confidentiality of Disclosed Documents Collateral Use of Disclosed Documents Open Justice Principle Contractual Obligations in Litigation Trade Secrets Protection

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Parties

Merck KGaA

Claimant

Merck Sharp & Dohme LLC & others

Defendants

Procedural Posture

Civil Commercial/intellectual Property / Post Trial Application Regarding Confidentiality and Use of Disclosed Documents

Legal Issues

  1. 1 Whether MSD should be permitted to use confidential documents disclosed in litigation for collateral purposes after trial
  2. 2 Whether the contractual confidentiality agreement overrides the open justice principle
  3. 3 Whether Merck has justified continued confidentiality over the documents

Ratio Decidendi

The court held that, given the existence of a binding contractual confidentiality agreement and the absence of a document-specific, justified application by MSD, the open justice principle does not override the parties’ agreed restrictions. MSD remains bound by the agreement and cannot use the Confidential Documents for collateral purposes unless it makes a targeted application identifying specific documents and purposes, justifying release from confidentiality by reference to special circumstances or a good reason. The court will not conduct a blanket or superficial review of confidentiality and will not release MSD from its obligations absent such an application.

Court Disposition

Application granted in part; confidentiality order made as sought by Merck, subject to MSD’s right to apply for use of specific documents in future if justified.

Orders

  • MSD is prohibited from using the Confidential Documents for collateral purposes except for the proceedings, unless the court orders otherwise on a targeted application.
  • MSD must destroy all copies of the Confidential Documents in its control, save as necessary for professional obligations.