Protecting Trade Secrets During Litigation: Investigating the Theft, Maintaining Confidentiality

This CLE course will guide litigators on the unique challenges of discovery and litigation involving or concerning trade secrets. The panel will begin with some practical tips on how to investigate and verify suspected misappropriation of trade secrets, then review the necessary level of detail for identifying trade secrets in different types of cases and at various stages of litigation, and will also review the litigation tools available to protect confidential information and the competing policy considerations that courts consider.

Describing a trade secret in a public forum can destroy secrecy, so enforcing the property right through litigation requires careful attention to how confidential information is exchanged and used by parties protected by the court during the entire process.

Many jurisdictions require a plaintiff to identify the claimed trade secrets with reasonable particularity, to give sufficient notice to the defendant and to inform the boundaries of discovery. Still, the plaintiff may not know which trade secrets were allegedly misappropriated. Defendants may legitimately object to discovery about a vaguely described trade secret or even suspect that a plaintiff is attempting to use discovery to expose and appropriate the defendant's trade secrets.

Even if protective orders are put into place or items filed under seal, endless debates about discovery often consume more resources than determining whether the information is entitled to protection or has been misappropriated. Yet, due process and practicalities require that the parties understand what is at stake and what they are accused of misappropriating. Counsel must balance these concerns.

Listen as our experienced panel reviews how to balance the nuanced discovery and evidentiary issues that arise in litigating claims and defenses involving the misappropriation of trade secrets.