IDENTIFICATION OF Trade secrets IN LITIGATION

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Presentation transcript:

IDENTIFICATION OF Trade secrets IN LITIGATION James Pooley ADVANCED PATENT law DECEMBER 15, 2017

Influence of california law Diodes v. Franzen, 260 CA2d 244 (1968) (pleading) CUTSA in 1985, added CCP § 2019.210 on sequencing discovery “before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity . . . .” Brescia v. Angelin, 172 CA4th 133 (2009) (not enough to point to a stack of documents, but no explanation required, only identification) Advanced Modular Sputtering v. Sup. Ct., 132 CA4th 826 (2005) (in technical case, experts can help court decide) Computer Economics v. Gartner, 50 FS2d 980 (S.D.Cal. 1999) (2019 can be applied in federal court in California) Del Monte v. Dole, 148 FS2d 1322 (S.D.Fla. 2001) (applied 2019)

Impact of dtsa No heightened pleading requirement under the DTSA Sleekez, LLC v. Horton, 2017 WL 1906957 (D. Mont. Apr. 21) Standard for identification in complaint still unclear Space Data v. X, 16-cv-03260-BLF (N.D. Cal. Feb. 16, 2017): motion to dismiss granted (with leave) for failure to be more specific than “data on the environment in the stratosphere” and the like. Mission Measurement v. Blackbaud, 216 F.Supp.3d 915 (N.D. Ill. 2016): general categories sufficient at the pleading stage; motions to dismiss and for more definite statement denied (argument that plaintiff must “allege its trade secrets with ‘particularity’ is not supported by case law or the federal pleadings standards).

Case management issues When and how to address the issue What to do with closely related claims (NDAs, noncompetes) What to do about “negative secrets” How to handle amendment by the plaintiff Sequencing discovery Should there be a presumption, borrowing from 2019? Exception for injunction applications? Exception where defendant has uniquely superior knowledge? Need to know what has been misappropriated?

Factors to consider on “reasonable” particularity Legitimate competing interests Concern over “fishing expedition” Format of document Analogous to patent claims? Reference to other documents Nature of the secret (formula vs. R&D) Ability to compare to public domain and personal skill Timing: injunction or SJ following discovery, or trial

JAMES POOLEY www.pooley.com +1 650 285 8520 Thank you! JAMES POOLEY www.pooley.com +1 650 285 8520