Confidential Business Evidence in China IP Litigation: Ask for Protection Before Access

By Pan Jianxing · Published 5 October 2026

An overseas rights holder may need to rely on customer contracts, licence terms, technical drawings or detailed sales records in a China IP dispute. Those documents can be important evidence while containing information the business would not normally share with a competitor. The practical task is to identify the sensitive material early and seek an arrangement that protects it while allowing the court to examine the dispute.

Labelling a folder confidential does not itself determine who may see it in litigation. Equally, a concern about disclosure should not lead the team simply to withhold evidence needed for its own claim. Prepare the evidentiary purpose and the protection request together.

Separate relevance from sensitivity

For each document, identify the fact it is intended to prove and the particular information that needs protection. A licence agreement may establish authority and contain unrelated pricing provisions. A customer schedule may support a transaction analysis while including contact details irrelevant to the disputed issue. Do not assume the same treatment is appropriate for every page.

Create an index with the document identifier, date, custodian, relevant passages and the reason for confidentiality. Explain whether the information remains current, who ordinarily has access and what disclosure concern exists. These details help make a concrete request. A broad statement that all company documents are secret provides little assistance.

Seek protection before the evidence is accessed

Article 26 of the Supreme People's Court's IP evidence provisions, Fa Shi [2020] No. 12, covers evidence involving trade secrets or other commercial information requiring confidentiality. Before relevant participants access it, the court must require a confidentiality agreement, undertaking or restriction through a ruling or other legal document. The protection addresses disclosure, use and allowing others to use the information for purposes outside the case.

The same provision allows a party to request limits on the people who can access the evidence. The court should permit a restriction where, after review, it considers one necessary. This requires an application and an assessment. It does not mean that the producing party can unilaterally exclude everyone employed by the opposing business.

Raise the issue in time for the court to address it before inspection, exchange or another access event. Identify the evidence and the anticipated event, and ask how protected material should be lodged. Do not assume a proposed arrangement has taken effect before the court confirms the applicable process.

Propose an arrangement people can follow

A useful request explains who needs access and why. Identify the proposed roles, including lawyers, technical advisers, interpreters and any business representative needed to explain the records. Consider whether competing commercial responsibilities create a specific concern. The court decides the necessary scope; the request should help that decision rather than merely name disfavoured individuals.

• Document scope: identify exact files, pages, columns or technical sections for which protection is requested.
• Permitted purpose: tie review and use to this litigation and the applicable court arrangements.
• Handling: propose how copies, translations, notes and extracts should retain their confidentiality markings.
• Access records: suggest a manageable record of authorised recipients and versions provided, subject to the court's directions.

These are practical proposals, not a standard order guaranteed in every court. Check the actual wording adopted and explain it to each person who receives material. Internal project access should not expand automatically just because one team member was authorised to inspect an exhibit.

Keep redaction transparent and reversible

Where a redacted working version would help, mark each omission and explain the category removed. Preserve the complete original and a consistent version history. Ask the court whether and how that version may be used, together with an appropriate method for examining the necessary unredacted information.

Do not remove terms that change the meaning of the provision relied upon. A royalty clause may depend on definitions, deductions or a separate schedule. Removing those qualifications could leave the comparison misleading. Translate material qualifiers with the main passage and identify any translation that covers only part of a document.

Distinguish confidentiality from exemption from examination

Article 71 of the Civil Procedure Law as amended in 2023 provides for evidence to be presented and examined by the parties. It also requires confidentiality for evidence concerning state secrets, trade secrets or personal privacy and prohibits presenting such evidence at a public hearing when presentation in court is needed.

Protection from public exposure and restrictions on participant access address different issues. Neither should be described as a general right to prove a claim with evidence the opponent can never examine. Plan how the relevant proposition can be tested within the court's arrangements.

Nor does a procedural confidentiality measure, by itself, decide a substantive trade secret claim. Ownership, the elements of protection, alleged conduct and liability require their own evidence and analysis. A document can require careful handling without resolving those separate questions.

Review access when the case changes

If advisers change, a new expert becomes involved or additional documents are produced, check whether the existing arrangement covers the new access. At settlement or the end of proceedings, review the actual restrictions and applicable retention duties before returning, retaining or destroying copies. Do not assume that closure automatically permits commercial reuse.

To discuss a protection request, contact Pan Jianxing with the document categories, their intended evidentiary purpose and the next procedural date. Avoid sending the confidential files in the first message; arrange the detailed review after the conflict check.

Pan Jianxing
China-qualified lawyer · Partner, 北京市长安律师事务所
Beijing & Shenzhen
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