Lawsuit publicity & IP Litigation in Brazil

Co-authored by Karlo Tinoco

Brazilian Court actions are, as a rule, public, with case files accessible to anyone regardless of the reason. This principle of publicity, anchored in the Constitution, is meant to guarantee transparency of the judiciary. But what happens when a lawsuit could open the doorway into a company’s business strategies?

Imagine two rival companies facing off in a Brazilian courtroom. One holds an invaluable inside look into its competitor’s business—pricing strategies, R&D insights, client lists—simply because litigation forced disclosure. Courts designed to administer justice suddenly flirt with becoming conduits for competitive espionage.

That is the tension at the heart of the Brazilian sealing of records (“segredo de justiça”), a procedural mechanism under which courts can restrict access to case files. Once reserved for family law or sensitive personal matters, it has evolved into a critical safeguard for the modern economy’s most valuable asset: information.

A landmark decision came from the Superior Court of Justice (STJ) in Appeal 1.082.951/PR. The dispute, on its surface, was about attorneys’ fees. But at its core lay a credit assignment contract bound by a confidentiality clause that the Appellant argued was necessary for its defense.

Justice Raul Araújo reframed the debate, stating that the publicity of judicial records may be restricted when necessary to preserve other guarantees, values, and fundamental protected interests, such as the party’s right to privacy, data confidentiality, or even the safeguarding of information necessary for the exercise of a profession, all of which are guaranteed by the Federal Constitution.

Thus, he understood that the request for the filing of a credit assignment agreement, containing a confidentiality clause, “justifies to seal the judicial records (segredo de justiça), since it concerns private and prevailing information and data, affecting the privacy and business security of those involved in the assigned credits, in addition to techniques of expertise and know-how developed by the contracting parties, impacting their competitiveness in the financial market, and not constituting a mere inconvenience to be borne by the litigants and third parties”1.

Accordingly, the STJ ordered the case to proceed under a confidentiality order, affirming that restricting access to the contract alone would not suffice, considering that “data and information will be extracted from those confidential documents for use in arguments and pleadings in the records.”

In the same sense, in an opinion by Justice Nancy Andrighi in a case involving a joint venture agreement executed between the parties, the STJ also determined that the proceedings should be conducted under confidentiality, due to the existence of data which, by virtue of their strategic nature, could “cause serious harm to the company if disclosed to third parties, especially competitors”2.

The need for secrecy becomes especially acute in patent litigation, where the dispute itself may revolve around formulas, processes, or unpublished applications. Brazil’s Industrial Property Law (Law No. 9.279/1996), in Article 206, explicitly requires courts to protect confidentiality when industrial or commercial secrets surface in litigation. Judges must order secrecy and bar use of the information outside the case.

One example arose in litigation over the Taxotere® (docetaxel) patent. While patents are generally public, the patent owner argued that confidential aspects of its pending applications and licensing strategies risked exposure. The court, therefore, ordered the case to proceed under secrecy. Another example occurred in a production of evidence proceeding seeking to verify the theft of information involving a computer program developed by the plaintiff; the São Paulo Court of Appeals reversed a decision that had denied confidentiality of the records, on the grounds that “Statute No. 9,279/96 [the IP Statute] provides that proceedings must remain confidential when confidential information is revealed in court”3.

Likewise, in federal courts in Rio de Janeiro, disputes over pharmaceutical process patents involving formulation data and clinical trial results were placed under confidentiality, as the courts emphasized that the balance between the public interest in transparency and the constitutional guarantee of free competition requires that documents containing industrial secrets be shielded from general publicity.

These rulings show that Brazilian judges treat innovation as an important asset: transparency cannot come at the cost of dismantling incentives for research. However, the balance struck by the Courts in sealing the records from public access does not resolve the problem when the other party – a direct competitor – continues to have access to the information. In such cases, it becomes necessary to find a balance between what is required for the resolution of the dispute and the party’s right to protect its assets.

Since publicity is the general rule, the determination of secrecy lies within the discretion of judges analyzing each specific case. Although publicity cannot distort the very competition courts are meant to preserve, it is necessary that judges find, in each dispute, the equilibrium between the right to protect competitive information and the other party’s right to adversarial proceedings and full defense.

In some cases, judges have gone further than just sealing the records and, as a way of protecting data from the opposing party itself, have limited access to sensitive documents exclusively to outside counsel, denying in-house executives from a rival company the chance to review them. Though not yet codified, this practice reflects international inspiration and recognition that, between competitors, litigation can be misused as a Trojan horse4.

However, this solution has been met with criticism, given that if even technical experts cannot access the documents, how can the opposing party, for example, prepare questions for the expert examination? While this solution is evidently designed to protect a company's sensitive information, it also denies the other party the right to review the evidence presented against it, thereby undermining its right of response.

Perhaps a more efficient proposal, which better represents the balance between the protection granted to sensitive data—especially when it comes to industrial or commercial secrets—and the guarantee of the adversarial system and the other party’s right to full defense, would be, for example, to restrict the presentation of confidential documents to the hearing, without granting the opposing party indiscriminate access to the data over time.

It is evident that Brazilian litigators now consider confidentiality to be an integral component of litigation strategy, rather than a mere addendum. Instead of taking the risk of exposure, experienced legal counsel will anticipate sensitive filings from the outset, preparing sealed documents for the judge and redacted versions for the public. Courts are often persuaded to create separate annexes to house confidential material, ensuring that the proceedings remain transparent without turning the case file into a competitive intelligence tool.

Notably, in cases where the dispute involves direct competitors, confidentiality orders can be even more extensive. This means that litigators must act strategically in identifying sensitive materials and requesting protective measures. It is imperative to implement measures that restrict the other party's access when industrial or commercial secrets are involved. The message is clear: in Brazil, protecting trade secrets in court is not an improvisation — it is a deliberate, carefully woven strategy.

• 1Superior Court of Justice (STJ), Appeal No. 1.082.951/PR, Rapporteur: Justice Raul Araújo, 4th Panel, 23 August 2011.
• 2Superior Court of Justice (STJ), AgRg in MC No. 14.949/SP, Rapporteur: Justice Nancy Andrighi, 3rd Panel, 19 May 2009.
• 3Court of Appeals of São Paulo (TJSP), Interlocutory Appeal No. 2374574-47.2024.8.26.0000, Rapporteur: Appellate Judge Edson Luiz de Queiroz, 9th Chamber of Private Law, 2 October 2025.
• 4For instance, Ordinary Procedure No. 1020504-66.2017.8.26.0114, 7th Civil Court, Judge Bruna Marchese e Silva, 31 March 2020. Confirmed by  the TJSP, Interlocutory Appeal No. 2138481-11.2020.8.26.0000, Rapporteur: Justice Renato Sartorelli, 26th Chamber of Private Law, 6 August 2020.