Confidentiality ambush at the UPC: disclose once, lose it forever (CoA on Rule 262.2 RoP), (UPC_CoA_930/2025)

In EOFlow v. Insulet (CoA, 18 March 2026; UPC_CoA_930/2025), the Court of Appeal dismissed EOFlow’s appeal against a Milan Central Division order refusing confidentiality treatment under Rule 262.2 RoP for business information produced in the context of an account of infringing acts (including contractual arrangements, invoices, turnover figures and prices).

The Court draws a sharp line between (i) restricting public access to the court file (Rule 262.2 RoP) and (ii) restricting the other party’s access, use or disclosure (Rule 262A RoP). A Rule 262.2 request is aimed at future requests from the public and does not automatically impose any confidentiality obligations on the opposing party. Equally, the Court rejected the notion of an “implicit” limitation that information produced under a court order may only be used for the purposes of the proceedings.

As a threshold, the classification of information as a trade secret requires that (a) the information is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) the information has commercial value because it is secret; and (c) the information has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

No matter the quality of information or internal measures to protect said information, if a party does not meet the procedural requirements, the last criteria cannot be fulfilled as reasonable steps to keep the information secret have not been taken.

The key takeaway is procedural and tactical: once information has been handed over to the opponent without an express restriction, its character as a trade secret or other confidential information may be irretrievably lost—making later requests for protection difficult or futile. Parties should therefore identify sensitive material early and consider Rule 262.2 and Rule 262A in tandem before producing documents or figures. Parties should further – specifically in international litigation complexes – identify the meaning of any disclosure for parallel litigations and whether a ‘no spill-over-rule’ needs to be applied. The UPC may not automatically apply confidentiality across regimes.