Trade Secrets - Working Group 12

October 2024

For those of you who attended the Working Group 12 Annual Meeting, thank you for making it a great conference. For those who couldn't make it this year, we missed you and hope to see you soon, whether on Zoom drafting calls or at the Annual Meeting next Fall.

The Working Group continues to be brimming with ideas and new plans. There are several important ways for you to become and stay involved.

First, the current drafts of our ongoing Commentaries are posted here. (You must be signed in to review the drafts, which are on the right side of the page under "Commentary Drafts.") The drafting teams will continue to advance the drafts and incorporate the revisions discussed in the meeting, but please also send along comments, questions and suggestions at your earliest convenience to [email protected] so that they can be routed to the drafting teams. Our goal is to release several of the revised commentaries for public comment and completion in the coming months.

Second, based on discussions at the Annual Meeting, we will soon be launching four new "brainstorming groups" to explore new topics to move the law forward and develop "charters" outlining the scope and anticipated issues to be addressed in each future Commentary. We discussed some potential brainstorming group topics at the Annua Meeting; we look forward to your views on these topics and suggestions for other possibilities.

1. International trade secret enforcement and protection - scope to be determined, but could include enforcing trade secrets in response to international and transnational misappropriation, protecting trade secrets in other countries and questions regarding whether "acts in furtherance" of misappropriation have occurred in the United States. This team could include collaboration with Sedona members for non-U.S. jurisdictions. The early stages of brainstorming may also consider whether litigation before th ITC chould be part of this project.
2. Devloping an effective "incident response plan" when trade secret disputes begin - scope to be determined, but could include guidance on what each party should be considering and doing in the first 90 days of a trade secret dispute before and during litigation. This potential commentary would build on and coordinate with discussion in earlier and ongoing commentaries on TRO's/expedited discovery in the Equitable Relief Commentary, the Employment Life Cycle Commentary, the Forensics Commentary and the Protecting Trade Secrets in Litigation About Them Commentary.
3. Trade secret guidance for employees who change jobs - scope to be determined, but could explain the applicable law for lay people employees and provide practical guidance about what to do (and not do) and waht to expect when they leave one employer and start with another employer. Such a project could particularly benefit from input from employees who have changed jobs or been embroiled in litigation about "what they wish they had known" to make the move go more smoothly.
4. When continued possession of trade secrets post-separation does or does not constitute misappropriation of trade secrets - scope to be determined, but coudl include identification of factors affecting this decision and discussion of whether this topic should be addressed standing alone or as part of a larger project on misappropriation.

If you are interested in volunteering to participate in one or more of these four brainstorming groups, please click here, answer the questions applicable to each brainstorming group for which you are applying, and email your responses to Casey Mangan at [email protected]. Note the deadline for applying for membership in brainstorming gropus is Friday, November 1, 2024. Requirements and expectations for brainstorming group members are included in the application form.

Third, if you ahve additional topics that you thing Working Group 12 should tackle, please send them to Casey Mangan at [email protected] so that they can be considered by our Steering Committee. Please provide your comments or suggestions about our ongoing Commentaries to [email protected] by December 11, 2024, or any other topics you recommend to Casey Mangan [email protected] by Friday, November 1. And be sure to apply to participate on any of the four Brainstorming Groups outlined above by November 1 as well. We look forard to continuing the success that Working Group 12 has achieved over the last year!

Finally, for those interested in Artificial Intelligence issues, please be on the lookout for Sedona's upcoming announcements in that space. The first meeting of Sedona Working Group 13 on Artificial Intelligence and the Law will be held in phoenix on January 16-17. If this is a topic that interests you, please let us know.

Vicki, David, and Casey