Trade Secrets - Working Group 12
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Publication Open for Public Comment
Please send your comments to [email protected]
|Publication Title||Public Comment Due Date|
|The Sedona Conference Commentary on Monetary Remedies in Trade Secret Litigation, Public Comment Version||October 31, 2022|
|The Sedona Conference Commentary on the Governance and Management of Trade Secrets, Public Comment Version||October 31, 2022|
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Brainstorming Groups - Overview
(1) What Can and Cannot Be a Protectable Trade Secret?
The fundamental trade secrets issues―What is a trade secret? How to establish misappropriation―permeate all of our Sedona Working Group 12 on Trade Secrets commentary drafting efforts. The brainstorming group will evaluate whether WG12 should create one or two drafting teams to prepare a commentary (or commentaries) on the following topics:
- What are the Contours of General Skill, Knowledge, and Experience vs. Protectable Trade Secrets?
- Can Information that Doesn't Qualify as a Trade Secret Be Protected as Confidential Information Under Contract?
(2) Sharing Trade Secrets With Other Organizations
Much has been written about sharing trade secrets with employees; not as much on sharing trade secrets with other businesses, whether in exploring potential relationships, conducting joint venture or other collaborative relationships, and disentangling from B2B relationships. The brainstorming group will evaluate whether WG12 should create a drafting team to prepare a commentary on the sharing of trade secrets with other organizations, including the following topics:
- due diligence;
- ways to assess and negotiate safeguards to be followed by the "receiving" party;
- the use of technological and contractual tools to document and control information sharing; and
- terms to consider when drafting NDA's including provisions relating to the termination/wind down of relationships.
(3) Forensic Issues in Trade Secret Disputes
The brainstorming group will evaluate whether WG12 should create a drafting team to prepare a commentary on forensic discovery in trade secret disputes to address:
- managing proportionate discovery;
- balancing the rights of litigants and rights in personal information or, in the case of competing organizations, their own trade secrets; and
- issues relating to the role of attorneys in designing and implementing forensic protocols and attorney client privilege.
This project draws on forensic experts, inside and outside counsel and includes representation by lawyers who frequently represent employees as well as attorneys who often represent organizations.
(4) Ethical Issues in Trade Secret Cases
Managing trade secret disputes potentially involve numerous ethical issues, The brainstorming group will evaluate whether WG12 should create one or more drafting teams to prepare a commentary (or commentaries) on the following topics:
- establishing a "good faith" belief for filing and maintaining trade secret litigation and thus avoiding potential liability for "bad faith" assertion, unfair competition, and other grounds;
- defending a trade secret claim on reasonable terms and avoiding potential liability for "willful and malicious" misappropriation;
- navigating whether and how to represent multiple clients in a dispute;
- managing potentially misappropriated documents;
- conducting appropriation investigations, including witness interviews and Upjohn warnings; and
- advising clients when underlying documents and information are designated as attorneys' eyes only under protective orders.
Brainstorming Groups - Member Expectations
Brainstorming group members will be expected to actively participate in regularly scheduled phone conferences to brainstorm on work product ideas. 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 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 EST on Thursday, October 21, 2021. 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 one or more brainstorming groups, please answer the following questions:
- (1) What is your profession and expertise?
- (2) How many years of experience do you have?
- (3) What organization do you work for?
- (4) [for each brainstorming group of interest to you] What qualifications or experiences make you particularly qualified to serve on 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.
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These materials are for the use of Working Group Members only in connection with their research and education efforts. They are not to be copied or republished in any way. Some of the materials are subject to copyright license agreements and other arrangements that prohibit any such republishing.
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