Proving Trade Secret Misappropriation at Trial IPI Summer Conference Park City, UT June 24, 2016 Nancy Stagg

Proving Trade Secret Misappropriation at Trial Prepare to try your case and you’ll settle it ! Conversely, prepare to settle your case and you’ll try it!

Proving Trade Secret Misappropriation at Trial Don’t overreach to exclude evidence Don’t overreach when identifying the trade secrets, but do identify with enough particularity Establish that the defendant is a competitor OR look for the motive Make sure your client makes reasonable efforts to enforce a robust trade secret protection policy Do some outside investigation to make sure the trade secrets are really secret (internet, court files, litigation history, other competitors, customers)

Proving Trade Secret Misappropriation at Trial Work towards a finding of willful misappropriation Consider whether unjust enrichment or a reasonable royalty is the better way to go - don’t be greedy Don’t count on the punitive damages If you win big, expect the trial court to reduce the award

Proving Trade Secret Misappropriation at Trial Don’t *#@& It Up! : Trade Secret Housekeeping (and review with your associates, paralegals and other staff) : Move to seal all court filings identifying the trade secrets Carefully and quickly review filings by the opposing party [when in doubt, “lock it out!”] Seek to close all hearings where the trade secrets may be mentioned (some judges require advance notice and you may need to submit a proposed order!) Don’t forget the client representatives sitting in the back of the courtroom : “who is that stranger?” Seek appropriate pre-trial and trial protective orders to restrict who has access to the trade secrets, how they are to be handled during trial and how the jury must be instructed to handle the information (your pre-trial PO won’t cover the trial!) Do it all over again on the appeal