Three New WG12 Brainstorming Groups - Applications to Participate Now Being Accepted

 

Brainstorming Groups – Overview

(1)  Clean Rooms

Developing a product in a “clean room” ensures the product is created without using or relying on a third party’s trade secrets. Clean rooms may be used in a variety of litigation and non-litigation contexts, including to protect and defend against claims of trade-secret misappropriation and to safeguard innovations. The brainstorming group will evaluate whether WG12 should create a drafting team to prepare a commentary on clean-room development, including the following topics: 

 

  • What is a clean room and when should it be used?;
  • How to design a clean room and who should be involved?; and
  • Provisions to consider when drafting a clean room protocol and development of a sample clean room protocol.

 

(2) Model DTSA Jury Instructions

Since the DTSA's enactment in 2016, there have been several thousand DTSA suits filed in federal courts and hundreds of those cases have proceeded through trial, yet there are still no comprehensive model jury instructions for the DTSA. Practitioners know that negotiating jury instructions is arduous and contentious, even when model instructions exist. The task becomes much more complicated when no model instructions exist, ensuring there is no common starting point for the parties to negotiate from. The brainstorming group will evaluate whether WG12 should create a drafting team to collect and prepare model DTSA jury instructions, including addressing the following issues: 

 

  • The scope of the instructions;
  • Which instructions should be mandatory v. optional
  • Instructions for substantive issues
  • Damages instructions

(3) Willfulness Damages and Attorney Fees

The brainstorming group will evaluate whether WG12 should create a drafting team to prepare a commentary on awarding willfulness damages and attorneys’ fees in trade secret disputes to address:

  • Differences between the UTSA and DTSA and among the states regarding the availability of and requirements for recovering attorneys' fees and willfulness damages, including burdens of proof, whether judges or juries make such awards, and caps on willfulness damages;
  • The lack of any statutory definitions of the terms "willful," "malicious," and "bad faith" in this context;
  • Whether it is appropriate to award both willfulness damages and attorneys' fees (see Comment to Rule 4 of the UTSA), and
  • The availability of willfulness damages where the measure of damages is a reasonable royalty (see Vermont Microsystems, Inc. v. Autodesk, Inc., 138 F.3d 449, 449-50 (2d Cir. 1998))

 

Brainstorming Groups - Member Expectations

Brainstorming group members will be expected to actively participate in regularly scheduled phone conferences to brainstorm on the relevant topic. Members will also be expected to participate in the drafting of a detailed outline that allows a subsequent drafting team to prepare work product consistent with the standards of The Sedona Conference.

Brainstorming Groups - Selection

In order to apply for the brainstorming group(s), you must be a member of WG12. If you are interested in applying for the brainstorming group(s), but are not yet a member of WG12, please become a member by signing up for a  Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG12. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or +1(602) 258-4910.

In order to be considered for the brainstorming group(s), please provide separate answers to each of the questions below and submit to Casey Mangan at [email protected] no later than COB ET on Monday, November 28, 2022. Please be brief when answering the questions – no more than 50 words per answer to a question. When applying, please note which brainstorming group(s) you are applying for. If you are applying for more than one brainstorming group, please be sure to answer the fourth question for each brainstorming group.

  1. What is your profession and expertise?
  2. How many years of experience do you have?
  3. What organization do you work for?
  4. What qualifications or experiences make you particularly qualified to participate in this brainstorming group, and why?

In addition to the above factors, we will consider the following factors in forming the brainstorming groups:

 

(1) Balance: As we work to achieve consensus-based documents, it is important that a wide range of perspectives and backgrounds are represented. Accordingly, in selecting brainstorming group members, the Steering Committee will work to ensure these perspectives are fairly represented. Please keep in mind, however, we do not seek differing perspectives so that one may advocate on behalf of a particular perspective or constituency. We seek differing viewpoints, backgrounds and experiences in order to build a consensus-based document that is beneficial to all stakeholders.

(2) Diversity: Not simply the diversity of opinions on all sides of a particular position, but also the diversity of background and experience that shapes and influences the unique perspective of each member.

Announcement Date: 
Friday, November 4, 2022