NDAs cannot shield relevant evidence from the Court

LD Düsseldorf: NDAs cannot be used to shield relevant evidence from the Court

InterDigital v Disney – LD Düsseldorf, 23 July 2026, UPC_CFI_87/2025

Introduction

Confidentiality agreements are an integral part of SEP licensing negotiations. They enable the parties to exchange commercially sensitive information while protecting their legitimate business interests. However, confidentiality cannot come at the expense of effective judicial review.

In InterDigital v Disney, the Local Division Düsseldorf clarified that a party cannot rely on an NDA to prevent the Court from examining evidence that is relevant to a FRAND defence. Where a party refuses to permit disclosure of such evidence to the Court under an NDA, it bears the procedural consequences of the resulting evidential gap. Although the decision arose in the context of FRAND negotiations, the underlying procedural principle is likely to be relevant well beyond SEP litigation.

The dispute

During their licensing negotiations, the parties had entered into a confidentiality agreement covering substantial parts of their discussions. In the subsequent UPC proceedings, Disney relied on InterDigital's alleged failure to comply with its obligations under the Huawei v ZTE framework. However, the Court found that it could not fully assess that allegation because the relevant negotiations remained protected by the NDA and InterDigital refused to permit their disclosure to the Court.

The key procedural question was therefore not whether the NDA itself was justified, but who should bear the consequences if one party relied on that NDA to prevent the Court from examining evidence that was central to the FRAND defence.

The Court's approach

The Court allocated that risk to the party refusing disclosure.

It held that a party cannot prevent the Court from examining relevant evidence by relying on an NDA while simultaneously seeking to benefit from the resulting evidential uncertainty. Since InterDigital refused to permit disclosure of the relevant negotiations to the Court, the resulting inability to review the evidence had to operate to its detriment. The Court therefore proceeded on the basis that the relevant requirement of the Huawei v ZTE framework had been satisfied.

Importantly, the judgment is not directed against confidentiality agreements as such. Nor does it suggest that confidential licensing negotiations should routinely become part of the public record. Rather, it clarifies that confidentiality cannot prevent the Court from carrying out the judicial assessment required to determine whether the parties complied with their respective FRAND obligations.

The decision therefore establishes a broader procedural principle. Where a party relies on confidentiality arrangements to prevent the Court from examining relevant evidence, that party bears the consequences if the Court is consequently unable to determine the relevant facts.

Takeaways

• A party refusing to permit disclosure of relevant evidence to the Court bears the consequences of the resulting evidential gap. 
• Confidentiality agreements should contain appropriate mechanisms allowing disclosure to a court where necessary for litigation.
• The principle established by the Court is likely to be relevant beyond FRAND disputes whenever confidentiality arrangements interfere with effective judicial review.

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