Information which may be confidential to you/a client would include “financial information (e.g. business plans), purchase prices of key raw materials, list of key customers, product specifications, test data, technical drawings or sketches, engineering specifications, contents of workbooks, the salary structure of a company, any kind of agreement, promotional or marketing material under development.”
So what are your options if a party applies for discovery of particular documents against you/your client pursuant to Order 24 of the Rules of Court 2012 and those documents happen to contain confidential information? Or if the opposing party is intending to disclose particular documents containing your/your client’s confidential information (e.g. in a case of misuse of confidential information)?
The reason why this matters is because documents filed in court are public record. For civil cases, anyone can approach the Registry, provide the officer with a case number, pay the prescribed fee, and obtain the documents filed in that case. This could be highly detrimental to you/your client.
Option 1: Redaction
Simply put, the document(s) to be disclosed will be redacted in respect of the confidential information. It must be noted that the document(s) containing confidential information will still be disclosed although the confidential information will be redacted.
This was successfully done in the Singapore High Court case of B2C2 Ltd v Quoine Pte Ltd  SGHC(I) 04. It was ordered that the “… redacted version shall be filed at court and served on the Defendant and shall be free for inspection in the normal way.”
The weakness of this option is that it is not feasible for documents wherein all its contents are confidential. Redacting every single confidential part will result in an unreadable document with little to no probative value in assisting the Court.
In Aqua Global Solutions Ltd v Fiserv (Europe) Ltd  EWHC 1627, “the court found that, although there were elements in the document which were of ‘marginal’ relevance to the issues in dispute, there were (as was accepted by the parties) parts of the agreement which were relevant to the claim and, therefore, it was not ‘necessary or desirable’ to redact parts of the document—’it is axiomatic that the meaning of a document must be derived from a consideration of the whole document’.”
Option 2: Prohibitory Injunction
This is intended to restrain a party from disclosing and/or using the confidential information. In Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors  MLJU 1187, the Plaintiff succeeded in obtaining “a perpetual prohibitory injunction is granted to restrain Defendants from utilizing, disclosing and/or dealing …” with the confidential information.
A prohibitory injunction was also successfully obtained in Yeohata Industries Sdn. Bhd. (dahulunya dikenali sebagai Gaindex Sdn. Bhd.) & Anor v Coil Master Sdn. Bhd. & Ors  MLJU 281.
In Alfa Laval (M) Sdn Bhd v Ng Ah Hai and Others  5 MLJ 344, however, the Plaintiff’s application for a prohibitory injunction failed due to a lack of certainty. The learned High Court judge held the following:
“It is a cardinal rule that an injunction must be framed in such a way that the Defendants will know with certainty what they are or are not allowed to do. In Potters-Ballotini Ltd v Weston-Bake  R.P.C 202 at 206 and Lawrence David Ltd v Ashton  1 All E.R. 385 at 393 applications for interlocutory injunctions to restrain alleged misuse of confidential information which was insufficiently defined were refused for that reason alone. Similarly in the instant case, the Plaintiff’s pleadings and evidence were insufficiently specific, precise and cogent. Therefore the Plaintiff is [not] entitled to any interlocutory injunction.”
In Sigma Glove Industries Sdn Bhd & Ors v Ong Chin Kok & Anor  8 MLJ 481, the “… plaintiffs’ failure to specify the confidential information (please see the above paras 11-16) meant that the plaintiffs had failed to satisfy the court that there is at least one bona fide and serious question to be tried in respect of the plaintiffs’ causes of action.” In light of this, the learned judge dismissed the plaintiffs’ inter partes application for an interlocutory prohibitory injunction against the first defendant.
What is clear is that it is highly difficult, though not impossible, to obtain such an injunction.
Option 3: Protective/Confidentiality Order
This option will “… ensure that only the court, the opposing party’s lawyers and certain persons from the opposing party can have access to the confidential information.”
Generally, the conditions attached to the order will include the following:
“(i) An undertaking on oath from the nominated officer of the plaintiffs that the material disclosed will not be used for any purpose other than the conduct of this litigation.
(ii) That the documentation will at all times remain within the custody of the plaintiffs’ solicitors who must give an undertaking to the court that they will not part company with such material or allow it to be copied in any way without the defendants consent or leave of the court. They must also undertake on oath that the material will not be used for any purpose other than the conduct of this litigation.
(iii) The access to be had by the named officer of the plaintiff to the material will have to be in the presence of the plaintiffs’ solicitors.
(iv) That a record be kept of the material examined by that officer and the dates, times and duration of such examination.
(v) At the conclusion of the litigation, the material will be returned in its entirety to the defendants’ solicitors.”
Locally, confidentiality orders have been granted in Ashok Kumar Mittal v Portcullis Trustnet (Singapore) Pte. Ltd  MLJU 700, and Berjaya Land Bhd v Wong Chee Hie & Ors  8 MLJ 129.
What are your/your client’s remedies if the opposing party breaches the term(s) of the protective/confidentiality order? “An injunction (temporary or permanent), damages or an account of profits may be ordered, and also the destruction or delivery up of any physical evidence of the information.”
 B2C2 Ltd v Quoine Pte Ltd  SGHC(I) 04, at paragraph 50
 Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors  MLJU 1187, at paragraph 76
 Alfa Laval (M) Sdn Bhd v Ng Ah Hai and Others  5 MLJ 344, at paragraph 69
 Sigma Glove Industries Sdn Bhd & Ors v Ong Chin Kok & Anor  8 MLJ 481, at paragraph 65
 This final option happens to also be provided for in secondary legislation in the United States. For example, see Section 3103(a) of the New York Civil Practice Law & Rules [https://law.justia.com/codes/new-york/2015/cvp/article-31/3103/] and Rule 26 of the Federal Rules of Civil Procedure [https://www.law.cornell.edu/rules/frcp/rule_26]
 Singham Sulaiman Sdn Bhd v Appraisal Property Management Sdn Bhd & Anor and another suit  10 MLJ 187, at paragraph 37
 Koger Inc & Anor -v- O’Donnell & Ors  IEHC 385 [http://www.bailii.org/ie/cases/IEHC/2009/H385.html]