International litigation specialist Steven Loble takes a look at the recent case of Rio Tinto plc v Vale SA and others  EWHC 1865 (QB) which dealt with the right of confidentiality of sources who had provided information to a business intelligence company.
This was in the context of a letter of request from the US District Court for the Southern District of New York for evidence to be provided in England.
The Judge referred to an earlier case which gave guidance as to how the court should set about the balancing exercise:
- “…here, the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it; then to consider whether the objective – to dispose fairly of the case – can be achieved without doing so, and only in a last resort to order discovery, subject if need be to protective measures. This is a more complex process than merely using the scales; it is an exercise in judicial judgment.” (my emphasis)
In summary, the Judge acceded to the argument that disclosure could have potentially threatening repercussions, including deadly repercussions, not only for the sources of information given to business intelligence providers, but also for their families. The judge ordered that the position of each of the sources be revealed and which information was provided by each of the sources, but the individuals’ identities were not to be revealed.
It is clear that this was more than simply an exercise balancing competing interests. It was an exercise in judicial judgment, weighing on the one hand the public interest in preserving confidentiality, and on the other hand the public interest in the English court assisting the foreign court in obtaining evidence in this jurisdiction and enabling the fair resolution of court proceedings. As the Judge stated, this possibly gave the Applicant more than it would be strictly entitled to, but preserved the identity of the individual sources and accomplished the aim of the exercise, namely to give effect to the request from the US court.