BT’s in-house lawyers allowed into ‘confidentiality ring’ despite concerns of information leakage

BT: undertakings

BT: undertakings

The Competition Appeal Tribunal has agreed to give BT’s in-house lawyers access to confidential information about the company’s competitors, relying on both their “professional standing” and undertakings to ensure the information is not spread beyond the legal department.

Mr Justice Snowden was ruling in Talktalk Telecom Group Plc v Office Of Communications (Ofcom) (Ruling: Confidentiality Ring) [2016] CAT 18, a case arising from the remedies announced by Ofcom following its investigation into the provision of leased lines to businesses .

The issue was whether certain information provided by Ofcom in the case should be anonymised so as not to reveal the identity of particular operators in copies to be provided to two in-house lawyers at BT.

Snowden J said: “BT wishes to include these lawyers in its legal team dealing with the case. The concern raised by other operators is over inadvertent leakage of their confidential information to the strategic and operational side of BT’s business.

“Nobody appearing before me has suggested that it is necessary for a similarly anonymised document to be provided to the external legal advisers acting for the various parties.”

While recognising that “this is an area where confidential information is jealously guarded and parties are extremely sensitive”, the judge said it was almost inevitable that the in-house lawyers would need the same information as BT’s external lawyers to understand the case.

To anonymise the data might result in “largely meaningless” data which would “almost inevitably lead to a series of satellite disputes about whether the BT team could properly function without full information”.

Snowden J said: “It seems to me that given the limited timetable that the parties are all desirous that we should work to in this case, that risk – which I regard as a real risk – is one that I should seek to avoid if possible.

“These considerations, together with the practical problems which would be caused were it to be necessary for BT’s team to maintain a distinction between the full and redacted reports in conversations between their internal and external lawyers, has narrowly persuaded me that I should not start down the track of requiring an anonymised version of the Ofcom statement be provided to the BT in-house lawyers.

“In reaching that decision, I have balanced the need to ensure that BT can participate properly in these proceedings with the need to provide suitable protection for the commercially confidential and sensitive information of others.

“In that regard I place considerable weight upon the fundamental point that Mr Beard makes for BT, namely that its internal lawyers are experienced specialists in the area who are, by reason of BT’s role in the market, quite accustomed to operating under terms of enhanced confidentiality.

“I believe that reliance can properly be placed on their professional standing and abilities to give full effect to the confidentiality undertakings that they will be giving, supplemented, in the draft order which I have seen, by additional restrictions relating to the treatment of the information as ‘customer confidential’ information (within the meaning of undertakings previously given by BT to Ofcom under part 4 of the Enterprise Act 2002) and the provision of IT ring-fencing and password protection.”

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