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THE IDENTIFICATION ISSUE IN TRADE SECRET LITIGATION

8/26/2008 Legal Intelligencer Darin W. Snyder and David S. Almeling Trade secret litigation presents a unique issue in intellectual property litigation. With all other types of intellectual property, the subject matter is identified in publicly available material -- a registered copyright or trademark, an issued patent or a publicly available product. Trade secrets, by definition, are not publicly available or publicly defined. Accordingly, an issue in all trade secret cases is that plaintiffs must identify their alleged trade secrets. Yet there is no consensus about when or how plaintiffs must identify their trade secrets. Courts are, however, increasingly requiring plaintiffs to identify with particularity each allegedly misappropriated trade secret during the early stages of discovery. This trend helps litigants to focus their dispute and courts to resolve the litigants' conflict. Plaintiffs often assert that there is no way to identify each trade secret before they conduct discovery. They also often argue that they need not identify the allegedly misappropriated trade secrets because defendants 'know what they took.' Neither of these arguments is persuasive because plaintiffs must possess -- before filing suit and long before any discovery -- a good-faith basis for alleging that they possess a trade secret that has been misappropriated. Even when they acknowledge their duty to identify the trade secrets, plaintiffs often want to keep their options open by delaying identification for as long as possible and by drafting their identification as expansively as possible. They argue that discovery is broad and should not be cabined by when or how they identify their trade secrets. Defendants, conversely, often want plaintiffs' identification to be as early and precise as possible. They maintain that such identification assists the court in framing the scope of the litigation in general and discovery in particular, enables defendants to prepare their defenses, and prevents meritless suits from progressing to the burdensome discovery stage.

Full post as published by The Trade Secrets Vault on September 06, 2008 (boomark / email).