Optis Cellular Technology Inc. (A company incorporated under the laws of the State of Delaware) v Apple Retail UK Ltd

Approved Judgment

The hearing before me today, and this judgment, concerned and concerns a reported unauthorised disclosure of the result of what, in this litigation, is called Trial F. In this judgment, I will use “leak”, interchangeably with “unauthorised disclosure”.

Before me today, Optis is represented by Ms. Ford QC, and Ms Jamal; Apple by Ms. Demetriou QC, with Ms Love and Ms Osepciu; Sisvel, whose role I will explain when I come to it, by Mr. Cronan; and Mr. Friedman, the managing director of Optis, who is separately represented, for reasons that will become apparent, by Mr. Hobson.

It is right to record, at the outset of this judgment, that the solicitors particularly involved are known to me personally, and have been for a long time. That is Mr. Moss of EIP, Mr. Trenton of WilmerHale, and Ms. Mutimear and Mr. Vary of Bird & Bird, who act for Sisvel. That will have been known to all of the parties at all times, and is not uncommon in patent matters, but I think it is right to acknowledge it explicitly in this case, where the conduct of the legal representatives, and in particular EIP, is under scrutiny. I also know Ms. Rajendra of Osborne Clarke (who also represent Optis) quite well, although my acquaintance with her does not go back quite as far.

Trial F took place before the long vacation, and it concluded at the end of July. At the very end of the hearing I said that I would give judgment in September, if possible. My draft judgment was provided to the parties on the late afternoon of 20th September 2021, and on the morning of 22nd September I received an e-mail from Mr. Moss of EIP, which said as follows:

Dear Judge

I am writing to advise you that yesterday evening I was informed by a senior member of the management at Optis that he had just been contacted by a third party who “congratulated” him on the outcome of Trial F. Accordingly it would appear that there has been a breach of the confidentiality directions contained in the draft judgment which you circulated earlier this week.

I have checked with all members of the Claimant's legal team and they have each advised me that they are not aware of any breach of these confidentiality directions. In addition when I contacted the Claimant's representatives to advise them as to the outcome of the Trial, and also when I sent them the draft judgment, I made it absolutely clear that the judgment and its contents were strictly confidential and could not be disclosed outside of the Claimants until the formal hand down on next Monday, 27 September. I am advised by the Claimants that they have adhered strictly to this direction. I am also advised that when contacted by the third party, my client responded to the effect that the judgment was confidential and that they (the third party) should not be aware of it or its contents.

Please indicate what, if any, further steps you would wish us to take in relation to this issue.

A copy of this email is being sent to the Defendants' representatives.

I will go further into the detail of what then happened later in this judgment, but suffice to say for the moment that over the next few days I directed that certain enquiries should take place. I did not constrain the parties from making other enquiries, but I did ask them to look into certain things which, I have to say, I thought were fairly obvious, but worth spelling out none the less.

In the course of those enquiries, I was informed by EIP that the third party referred to in Mr. Moss's e-mail of 22nd September was Sisvel. Sisvel is a current litigant in SEP patent infringement proceedings in the Patents Court (represented by Bird & Bird), and known to me and, as will become apparent, to the other parties. I ought also to record that Unwired Planet (and Sisvel, to a much more limited extent) are past clients of mine, when I was in practice at the Bar. The parties have been able to make observations about my conducting the trials in these proceedings given my past relationship with Unwired Planet, but in the end no objection was made. I have never met Mr Friedman of Optis or Mr Fogliacco of Sisvel (to whom I refer below) and I did not know who they were prior to the present situation.

As of today, it is accepted, on the part of Optis, EIP and Optis' managing director, Mr. Friedman, that there was, in fact, no leak at all, or that if there was a leak it was Mr. Friedman who, albeit he says as a result of a misunderstanding, communicated the result of Trial F to Sisvel, and not the other way around.

In between 22nd September, when I was first informed (I should rather say, misinformed), and today, there has been a massive waste of time and money, and much completely unnecessary heartache and worry. It was almost inevitable, once a potential leak was reported to me, that everybody who saw the draft judgment was going to be the subject of enquiries, which could be painful and uncomfortable, and, indeed, on the strength of Mr. Moss's evidence, have been.

Despite the fact that it is now clear that there was no unauthorised disclosure, or that if there was it was outbound from Optis, and not inbound from Sisvel, I have thought carefully about what to do, and I do not consider that the fact that it has been established that there was not a leak is good enough to let the matter lie there. It needs articulating what happened, so that lessons can be learned for the future, to indicate my disapproval of what has happened, and to make clear, publicly, those people, which is the vast majority of people involved, to whom it is clear that no blame attaches. Hence this judgment.

The draft judgment in Trial F had the following notice on it (my clerk's email address is omitted for this judgment but was included as sent):

IN CONFIDENCE

This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down remotely on 27 September 2021 at 10.30am. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.

The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (nil returns are required) to the clerk to Mr Justice Meade, via email at [ omitted], by 4pm on Thursday 23 September 2021, so that changes can be incorporated, if the judge accepts them, in the handed down judgment.

It is in a fairly standard form, apart, possibly, from the timing given for corrections and the the hand down, and I will return to that at the end of my judgment.

Practice Direction 40E, concerning reserved judgments, says the following:

Availability of reserved judgments before handing down

2.1

Where judgment is to be reserved the judge (or Presiding Judge) may, at the conclusion of the hearing, invite the views of the parties' legal representatives as to the arrangements made for the handing down of the judgment.

2.2

Unless the court directs otherwise, the following provisions of this paragraph apply where the judge or Presiding Judge is satisfied that the judgment will attract no special degree of confidentiality or sensitivity.

2.3

The court will provide a copy of the draft judgment to the parties' legal representatives by 4 p.m. on the second working day before handing down, or at such other time as the court may direct.

2.4

A copy of the draft judgment may be supplied, in confidence, to the parties provided that –

(a) neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and

(b) no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down.

2.5

Where a copy of the draft judgment is supplied to a party's legal representatives in electronic form, they may supply a...