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Legal Tech: E-Discovery and Seizure Orders Under the Defend Trade Secrets Act
Congress passed the Defend Trade Secrets Act of 2016 (DTSA) with much fanfare, touting its potential to curtail both domestic and cross-border theft of American ingenuity and technology. While not substantially different from its state law counterparts, the DTSA offers a unique and powerful remedy previously unavailable to aggrieved parties in their efforts to curb trade secret misappropriation: ex parte seizure of property containing trade secrets.
The DTSA seizure order provision also involves key electronic discovery issues of which counsel and clients should be aware. This article provides a brief overview of DTSA seizure orders and discusses e-discovery considerations in connection with those orders.
DTSA Seizure Orders
The DTSA seizure order provision enables plaintiffs to obtain a court order ex parte that seizes from defendants "property" containing plaintiffs' trade secret information. For a court to issue a seizure order, plaintiffs must satisfy eight separate requirements memorialized in 18 U.S.C. §1836(b)(2)(A)(ii). The underlying prerequisites include those that must be established for a Federal Rule of Civil Procedure (FRCP) 65 order such as showing the existence of immediate and irreparable harm and the likelihood of success on the merits.
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