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D. Minn.: Embedded Proprietary Information Cannot be Redacted

On Friday, Judge Hildy Bowbeer, issued a decision, in Grupo Petrotemex v. Polymetrix AG, No. 16-cv-2401 (SRN/HB), 2019 U.S. Dist. LEXIS 87594 (D. Minn. May 24, 2019) granting in part and denying in part, the Plaintiffs' motion to compel documents from the defendants. The Plaintiffs contended that they were entitled to withhold documents pursuant to the Swiss Federal Unfair Competition Act and the Swiss Data Protection Act which require that third party confidential information be kept secret.

Some of the data sought by the Plaintiffs concerned technological information shared with other firms and suppliers. Judge Bowbeer found, "That Polymetrix cannot identify line by line what is confidential and proprietary and what is not does not mean that there is not proprietary information embedded therein, or that the specifications and drawings as a whole do not have a value that depends on their being maintained confidential. . . Polymetrix witnesses aver, and GPT/DAK does not seriously contest, that there is confidential technical information of Polymetrix's business partners intertwined with Polymetrix's own contributions, and it is not difficult to believe that there is at least an implied understanding that the proprietary technical contributions of those partners will be kept confidential." Id. at *13-14. It would not be possible to redact technical information and still produce documents of any real use. Documents could be withheld under Article 162 of the Swiss Criminal Code which forbids the disclosure of information which must kept confidential pursuant to contractual obligations.

However the Court also found that Article 273 of the Swiss Criminal Code, which prevents the disclosure of third party business secrets, should not block a narrowed scope of discovery because Polymetrix could not establish that the holders of secrets at issue were Swiss residents, or that the secrets bears a close relationship to Switzerland - the 'Binnenbeziehung' test..

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