Tue, Apr. 18, 2006

Secrets Under Constitution

CK - Washington.   Constitutional protection extends to trade secrets in matters before the administrative law courts, the Constitutional Supreme Court in Karlsruhe decided in a telecom case, docket number 1 BvT 2097/03, on March 14, 2006, which it discusses in press release number 27/2006 dated April 5, 2006.

In litigation, competitors had requested an inspection of files from a rulemaking proceeding before the regulatory agency, Bundesnetzagentur für Elektrizität, Gas, Telekommunikation und Eisenbahnen. Deutsche Telekom AG provided redacted and unredacted copies of business documents relating to its cost structure. The lower courts differed on the disclosure requirements. The German top court, Bundesverfassungsgericht, ruled that Article 12 Section 1 of the Constitution, Grundgesetz, protects the approach taken by the telecom provider.

The decision may impact discovery in matters before United States courts. There is precedent that discovery here may have to respect certain foreign data protection laws. Such precedent tends to relate, however, to third party data. By contrast, the matter at issue appears to involve only proprietary data of the party from whom disclosure was sought.


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