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Can Defendants Access Trade Secrets?

By James A. DiBoise and Tait Graves
October 02, 2003

One of the most frustrating problems in defending a trade secrets lawsuit comes when the plaintiff refuses to agree that the accused defendant may have access to, and thus learn about, the specific alleged secrets the defendant is accused of misappropriating. There are, however, two arguments defense counsel can use to win a motion for access to that information ' a victory that alone can turn the momentum in the defendant's favor.

The Problem

In trade secrets cases, plaintiffs often deny the defendant access under the protective order to the precise information at issue and argue that if the defendant were to learn it, he might misappropriate it. Without such access, defense counsel can describe the charges to the client in only general terms. This prevents the accused individual from drawing upon his personal knowledge to provide evidence that the information is in the public domain (and is thus not secret) or was independently derived. In other words, the person in the best position to refute the accusations is sidelined. In such cases, trade secrets defendants are often forced to spend large sums to hire an expert witness to rebut the plaintiff's evidence that the material is a trade secret.

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