Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Discovery of Trade Secrets: How Courts Analyze Disclosure Issues
The first part of this series, published last month, addressed the definition of trade secrets in the context of discovery. As efforts to obtain trade secret information increase, a clear definition of trade secret is vital for the courts to analyze this issue correctly. This second installment addresses that analysis, and the standards and terminology courts apply to decide whether trade secrets should be disclosed, the arguments and evidence that parties resisting this discovery can present to the trial court, and strategies to limit the potential for additional damage if trade secrets are ordered produced.
The Test for Discovery
Federal courts and most states follow the same test. Initially, the party resisting disclosure must demonstrate that the information sought is trade secret. The burden then shifts to the requesting party to prove a “compelling need” for that information. See, e.g., In re Remington Arms Co., 952 F.2d 1029 (8th Cir. 1991); In re Continental General Tire, Inc., 979 S.W.2d 609 (Tex. 1998). While the test appears relatively simple, the standard by which “compelling need” is determined can be elusive. The traditional discovery standard of “relevant to the subject matter” of the litigation is patently insufficient. If mere relevance were enough to require disclosure, the protection afforded trade secrets would be meaningless. In re Continental General Tire, Inc. at 613-614. Rather, courts refer to a somewhat nebulous, heightened burden. Further, courts have also required that the requesting party establish “compelling need” with competent evidence in the form of affidavit, live testimony, or documentary evidence. The argument of counsel does not suffice.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?