Obtaining or resisting some form of equitable relief is a key component of many trade secret disputes, both at an early stage and following trial on the merits. The conclusion of whether relief is warranted, and if so, what kind, requires close legal and factual analysis. This Commentary on Equitable Remedies in Trade Secret Litigation is designed to be a resource to assist parties and decision-makers in conducting this analysis. The Commentary reminds readers that equitable relief in trade secret disputes does not stand apart from general principles of equity and explores how those principles have been applied to trade secret disputes. Given the nature of equitable relief, the Commentary does not, and by definition, could not, urge a one-size-fits-all approach to equitable relief in trade secret disputes. Rather, it focuses on exploring the key factors courts consider in assessing any equitable relief and considers how courts have applied these basic equitable factors to evaluating and fashioning equitable relief in trade secret disputes. Because trade secret disputes often arise on an emergency basis before either party has developed a full evidentiary record, the perceived “need for speed” can lead to a number of problems that the Commentary works to address. First, it offers suggestions for assessing how an early remedy can be calibrated to the availability of evidence and whether targeted expedited discovery may assist the parties and the court in evaluating early requests. Second, the Commentary emphasizes that equitable relief, or its denial, must always be tied to the direct and circumstantial evidence presented to the court and the reasonable inferences therefrom and not rely simply on oft-cited mantras or invocations of presumptions. It offers examples of how such assessments have been made in a variety of cases in jurisdictions across the country. Finally, the Commentary provides guidance for selecting, scoping, and drafting a variety of equitable remedies to suit the needs of a variety of disputes. Please note that this version of the Commentary is open for public comment through August 31, 2021, and suggestions for improvements are welcome. |
