How Confidential Business Information Can Be Protected During Litigation

A company’s core value is found in its confidential business information — trade secrets, special processes, marketing strategies, board meeting minutes, and contact lists. It is the most valuable asset owned by your company. As noted in an Epiq Global article, it represents about 70% of a publicly listed corporation’s value, and its theft can cost up to $600 billion annually, making protection of its sensitive information critical. 

Of major concern is how confidential business information can be protected during litigation when sensitive data must be shared with lawyers and competitors. 

Common forms of confidential business information (CBI)  include supplier lists, customer lists, rejected business plans, and financial information, all of which can be exploited if exposed. Clear definitions and proper labeling of CBI (such as “confidential” and “Attorneys’ Eyes Only) are vital to prevent breaches. Companies should also proactively identify CBI and develop policies around its protection. 

Protective orders, tailored to specific cases, govern the disclosure and use of CBI during litigation. These orders often include different tiers of protection, allowing necessary information sharing while keeping the most sensitive data secure. During eDiscovery, where large volumes of data are exchanged, protective orders should include measures like encryption and access controls to prevent accidental disclosure.

Analytics and artificial intelligence tools can efficiently identify CBI within dense data, reducing the risk of unintentional exposure. Companies may also benefit from engaging third-party managed services that offer expertise in CBI protection. These experts can develop policies, create protective playbooks, and ensure consistent policy implementation across matters.

The core of a company’s value lies in its CBI, which underpins its products, services, and operations. Protecting this information is paramount, especially during litigation, and involves proactive identification, robust policies, court-ordered protections, and possibly third-party expertise.