The Sedona Conference Commentary on Protecting Trade Secrets in Litigation About Them: eDiscovery Best Practices

The Sedona Conference® (TSC) and its Working Group 12 on Trade Secret Law (WG12) has now published the Public Comment Version of its Commentary on Protecting Trade Secrets in Litigation About Them.

Trade secrets are a property interest that can be destroyed by disclosure. This makes litigation of trade secrets unique; by bringing claims seeking to remedy misappropriation, a trade secret owner puts these secret information assets at issue in the public litigation process. Without the ability to protect the secrecy of trade secrets in litigation, the law of trade secrets would disappear, as it would be impossible to enforce trade secret rights in the face of misappropriation. Both the Uniform Trade Secrets Act and the Defend Trade Secrets Act explicitly acknowledge the need to protect trade secrets in litigation.

But this issue of protection runs into competing policy objectives: First, defendants need information about the claims to mount an effective defense, and second, the public generally has a constitutional right to access judicial proceedings. In this Commentary, WG12 attempts to reconcile these important objectives with the need to protect trade secrets when litigating misappropriation claims. This Commentary offers consensus recommendations to parties and courts for addressing these thorny issues in various contexts, including access to trade secret information by in-house counsel, experts, employees, and attorneys who prosecute patents, as well as providing consensus guidance to parties and courts about balancing the right to public access with the trade secret owner’s right to maintain the secrecy of its trade secrets.  It also addresses logistical issues that often arise in trade secret cases, such as guidance associated with protective orders.

The Commentary contains five sections (including the Introduction) and also includes six principles and seventeen(!) guidelines on protecting trade secrets in litigation in a 42-page PDF document!

I’ve already covered a few eDiscovery case rulings on trade secret litigation, including here, here and here.  So, it’s an important topic and these cases are very high stakes.

This version of the Commentary is open for public comment through September 30, 2021, and suggestions for improvements are welcome. After the deadline for public comment has passed, the drafting team will review the public comments and determine what edits are appropriate for the final version. Please send comments to comments@sedonaconference.org or fax them to 602-258-2499 (apparently, TSC still has a working fax machine, who knew?).  😉

You can download a copy of the Public Comment Version of the Commentary on Protecting Trade Secrets in Litigation About Them here (login required, which is free).

So, what do you think?  Have you been involved in trade secret litigation? If so, what did you do to ensure protecting trade secrets?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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