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

2. 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!

3. 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)

4. 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

5. 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