449 Abuse (Section 3:13(2) of the Dutch Civil Code): the disproportionality criterion

trade secrets; trading loss. The circumstance that confidential company information winds up in the hands of the applicant or third parties as a result of a voorlopig getuigenverhoor is a factor that can be so compelling that rejection takes place on the basis of the disproportionality criterion. Three factors are decisive for the protection of trade secrets. Firstly, the nature of the confidential data. An a priori obstruction to submit data to proceedings can only exist with respect to data in respect of which the law prescribes confidentiality. Concerning data that must be disclosed there is no right to confidentiality. I am of the opinion that, in principle, a company is not required to provide all other confidential company information to a third party. This is all the more cogent as it is sometimes difficult or onerous to protect this information other than by simply keeping this information secret. Secondly, the purpose of disclosing the data and the legal relationship between the company and the party that requests disclosure of the data. A voorlopig getuigenverhoor is generally used to gather information within the context of (establishing the truth in) the principal action. This is a compelling interest, but it becomes more likely that the interest of the applicant will have to give way as the data are more deserving of protection. The court will have to assess, taking all circumstances into consideration, whether and to what extent the applicant is able to use the trade secrets obtained during the voorlopig getuigenverhoor to its advantage and to the disadvantage of its other party. Thirdly, the nature and extent of the disclosure. Practical measures can be implemented to prevent disclosure to third parties if the applicant wishes to investigate trade secrets. However, it is difficult to conceive of measures that would prevent information from winding up in the possession of the other party. A voorlopig getuigenverhoor can cause trading loss also in the event the requested information does not constitute a trade secret. Although incurring a trading loss merely as a result of the voorlopig getuigenverhoor is not in principle a decisive factor that benefits the defendant, it may be expected of the applicant that it accurately describes what facts it wishes to investigate, so that the investigation (and consequently the trading loss) is limited as much as possible (par. 8.5.2).

weak claim in the principal action. The purpose of the voorlopig getuigenverhoor means that the court cannot reject an application because the applicant failed to prove its claim in the principal or failed to provide prima facie evidence of its claim. It is allowed, however, to include the factor of a weak material claim (which became evident during a marginal review) in the balancing of interests. This may apply in the case of a patent application at an early stage, a claim for compensation that has little chance of success in light of established case law or a formal obstruction that prevents the principal action from being initiated (par. 8.5.3).

the facts are too vague or irrelevant. Insufficient interest or a fishing expedition may exist if the applicant wishes to investigate facts that are vague and/or irrelevant. The factor of facts that are too vague and/or irrelevant can play a role in the balancing of interests in less clear cases of facts to be proved that are not described very clearly or in the case of less significant doubts as to whether the facts to be proved are related to the claim in the principal action (par. 8.5.4).

prognosis; result of the witness testimony. There is less reason to fully maintain the prohibition on prognoses within the context of a voorlopig getuigenverhoor than there is in the principal action in view of the fact that a witness that was not heard during the voorlopig getuigenverhoor can still be heard later during the principal action. The factor that it is expected that a witness will not able to provide any information or only information that has little relevance is a strong argument in favour of the defendant. On the one hand, the mere fact that a witness in proceedings other than the voorlopig getuigenverhoor has already made a (written) statement does not constitute a ground for rejecting a voorlopig getuigenverhoor. One the other hand, the expectation that a witness will not be able to provide any (additional) information or only (additional) information that has little relevance can be taken into consideration in the balancing of interests (par. 8.5.5).

(other) evidence is available and concerns the same facts as the applicant wishes to investigate as part of the voorlopig getuigenverhoor. In this connection it is relevant in the first place whether the applicant is seeking to support other evidence that already exists by means of witness testimony or whether the applicant seeks to refute the other evidence by means of witness testimony. And secondly, it is important whether the applicant was a party to the other means for obtaining evidence that were used and whether it was able to exercise influence on the gathering of evidence. Thirdly, it is important whether the other evidence has or has not already been collected in civil proceedings (par. 8.5.6).