Trade secrets are a property interest that can be destroyed by disclosure. This makes litigation of trade secrets unique; by bringing claims seeking to remedy misappropriation, a trade secret owner puts these secret information assets at issue in the public litigation process. Without the ability to protect the secrecy of trade secrets in litigation, the law of trade secrets would disappear, as it would be impossible to enforce trade secret rights in the face of misappropriation. Both the Uniform Trade Secrets Act and the Defend Trade Secrets Act explicitly acknowledge the need to protect trade secrets in litigation. But this issue of protection runs into competing policy objectives: First, defendants need information about the claims to mount an effective defense, and second, the public generally has a constitutional right to access judicial proceedings. In this Commentary on Protecting Trade Secrets in Litigation About Them, Working Group 12 attempts to reconcile these important objectives with the need to protect trade secrets when litigating misappropriation claims. This Commentary offers consensus recommendations to parties and courts for addressing these thorny issues in various contexts, including access to trade secret information by in-house counsel, experts, employees, and attorneys who prosecute patents, as well as providing consensus guidance to parties and courts about balancing the right to public access with the trade secret owner’s right to maintain the secrecy of its trade secrets. This Commentary also addresses logistical issues that often arise in trade secret cases. In virtually all such cases, discovery is governed by a protective order. This working group provides guidance around how these orders should be drafted and how parties should exchange information pursuant to a protective order. The goal is to avoid unnecessary overdesignation, which burdens parties and the court, while allowing for efficient exchange of information. |
