Last week, multinational mining giant Rio Tinto asked a federal court in Manhattan to shield its document disclosures to the Securities and Exchange Commission (SEC) from the public eye. Unlike the typical cases we discuss involving former employees working for competitors, Rio Tinto is defending against fraud claims brought by the SEC that implicated the company and two of its former top executives.
The SEC filed suit in the United States District Court for the Southern District of New York last October claiming that Rio Tinto, through its chief executive officer and chief financial officer, failed to properly account for a declining multi-billion dollar investment in overseas coal assets. The SEC alleged Rio Tinto should have disclosed impairments in the investment to its shareholders, auditors, and the market sooner than it did. Rio Tinto has denied any misconduct and has filed a motion to dismiss the charges.
If the court denies the motion to dismiss, the case will proceed to the discovery phase in front of a global audience. During discovery, Rio Tinto will have to disclose thousands of documents and other evidence relating to its handling of the investment including what it contends to be confidential and proprietary research, development, and commercial information which may rise to the level of trade secrets. Because of this, Rio Tinto’s lawyers have sought a protective order asking the court to seal the documents from the public to avoid “annoyance, embarrassment, oppression, or undue burden and expense.”
Lawyers for the SEC agree that the court should keep Rio Tinto’s trade secrets and other confidential information under wraps and have joined Rio Tinto’s request for a protective order. It will be interesting to see how the court weighs Rio Tinto’s claims of proprietary information, which are not directly at issue in the case, against the public’s interest in disclosure ─ particularly in a case against the SEC. If the court denies Rio Tinto’s request, you can expect a battle for the ages as Rio Tinto fights to safeguard almost 150 years of alleged trade secrets from public view. In either case, Rio Tinto is a good reminder of the importance of being diligent about protecting confidential and trade secret information in all cases, not just the obvious ones.