| Time |
Session |
Panelists |
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Sunday, September 8, 2024 |
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| 5:30 — 7:30 p.m. |
Welcome Reception |
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Monday, September 9, 2024 |
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| 7:30 — 8:45 a.m. |
Breakfast & Registration |
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| 8:45 — 9:00 a.m. |
Welcome & Introductions |
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| 9:00 — 10:15 a.m. |
[Session 01] Commentary Review: Sharing Trade Secrets With Other Organizations |
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Today's dynamic business environment creates opportunities for businesses to share their trade secrets with a variety of people and in a variety of circumstances, including with suppliers and in connection with potential and actual transactions. Such sharing can create synergy and value, and, at the same time, new or enhanced risks of misappropriation. In this panel, the dialogue leaders will explore the topics of protecting trade secrets with contractual and other administrative tools, physical tools and technological tools before, when and after they are shared, from the disclosing party's perspective and the receiving party's perspective. This discussion will identify potential issues when sharing trade secrets and will suggest pragmatic, available solutions in light of marketplace realities. |
Fine, Hayes, Harezlak, Pelletier*, Saeedi |
| 10:15 — 10:45 a.m. |
Morning Break |
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| 10:45 — 12:00 p.m. |
[Session 02] Draft Commentary Review: The Use of Clean Rooms to Minimize Risk and Protect Innovations |
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Utilizing a “clean room” can be an effective way to develop new proprietary material while minimizing concerns that the material is “tainted” by unauthorized use of another’s trade secrets. Clean rooms may also be used as a litigation tool—for example, to establish or rebut an independent development or reverse engineering defense. Designing and implementing a clean room presents unique challenges and considerations, and there is no one-size fits all approach. This discussion will help (1) identify and describe features that may be used in a clean room process, including to identify key players that may be involved in designing and implementing a clean room and key provisions that may be included in a clean room protocol; and (2) identify key issues practitioners should be aware of when considering whether, when, and how to design and implement a clean room process. |
Elman, Lewi, Linderman*, McPherson, Zang |
| 12:00 — 1:15 p.m. |
Lunch |
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| 1:15 — 2:30 p.m. |
[Session 03] Model Jury Instructions Under the Defend Trade Secrets Act |
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This Project Team has prepared an outline of topics for jury instructions under the Defend Trade Secrets Act. Such topics include the definition of a trade secret, misappropriation via acquisition, disclosure or use, the nature of the injury or harm required, remedies available for misappropriation and affirmative defenses. This drafting team has collected and will continue to pursue exemplary jury instructions to assist practitioners and the courts in framing the issues to juries via clear and effective instructions. |
Candido, D'Amore, Galli*, Gerber, Herbert, Lotfollahi |
| 2:30 — 3:00 p.m. |
Afternoon Break |
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| 3:00 — 4:00 p.m. |
[Session 04] New Trade Secret Topics for Development by WG12 Over the Next Year |
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Since the inception of Working Group 12 in 2018, our members have been active and prolific authors of numerous commentaries addressing important topics confronting trade secret practitioners and the courts. From the identification of trade secrets to governance and management of trade secrets to the protection of trade secrets throughout the employment lifecycle and from equitable and monetary remedies to trade secret issues across international borders, our Working Group has provided valuable in-depth guidance to augment understanding of these and other key issues. Judges in courts across the country from the Northern District of California to the Southern District of New York cite The Sedona Conference publications favorably as authoritative sources for what the law is and what it ought to be. The work continues: at this Annual Meeting, we are discussing and refining the new commentary drafts our drafting teams have been hard at work developing since our last meeting. And more and new legal issues are emerging in the field. This session invites members to help replenish the inventory of important new topics for our volunteers to analyze, first through our brainstorming group process, and if approved, through our new drafting teams’ development of future insightful commentaries.
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Almeling, Cundiff, Morgan* |
| 4:00 — 5:15 p.m. |
[Session 05] "Blockbuster" Court Decisions Shape Future Thinking About Trade Secrets: New Guidance on Damages, Extraterritoriality and More |
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Several recent decisions - the Seventh Circuit's July 2, 2024 opinion on Motorola Solutions, Inc. v. Hytera Communications Corp. Ltd., the Virginia Court of Appeals' decision on July 30, 2024 in Pegasystems Inc. v. Appian Corp. and the Second Circuit's decision on Syntel Sterling v. Trizetto - have the potential to significantly influence several areas of trade secret law moving forward. Experts on this panel will delve into these cases and assess the implications for remedies, burdens of proof, extraterritoriality, and jury instructions among other issues. This discussion will also draw upon and expand the scope of the Working Group's previous commentary published in this area, The Sedona Conference's Commentary on Monetary Remedies in Trade Secret Litigation, 24 SEDONA CONF. J.349 (2023). |
Almeling*, Bohrer, Bone, Lotfollahi, Siegal, Southwick |
| 5:30 — 7:30 p.m. |
Reception (guests invited) |
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Tuesday, September 10, 2024 |
|
| 7:30 — 8:30 a.m. |
Breakfast & Registration |
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| 8:30 — 9:30 a.m. |
[Session 06] Protecting Trade Secrets and Confidential Information Through Contract |
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This panel will explore several important issues. What can be protected under a confidentiality agreement and how are breach of contract and misappropriation of trade secrets related? Should confidential information be treated differently depending on the context? Are there limits on enforcing confidentiality agreements? What clauses should be included in a sample nondisclosure agreement? The dialogue leaders will discuss and elicit membership feedback on the status, outstanding issues, and direction of this draft commentary and nondisclosure agreement. |
Beck, Kreiter, Morton*, Pooley, Skoff |
| 9:30 — 10:45 a.m. |
[Session 07] Draft Commentary Review: Forensic Issues in Trade Secret Disputes |
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Digital forensic review of computers, mobile devices, audit logs and other forms of ESI is a common practice in today’s trade secret litigation. As The Sedona Conference nears closer to a releasable publication with Principles and Guidelines designed to serve all sides in a trade secret dispute, members from the legal practitioner and forensic expert realms will provide updates on the draft, and will guide a collaborative discussion on recent topics involving forensic investigations, which will also be designed to seek input from participants to further incorporate into the pending publication. |
Gerber*, Bandemer, Berkovits, Vaughn |
| 10:45 — 11:00 a.m. |
Morning Break |
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| 11:00 — 12:00 p.m. |
[Session 08] Willfulness Damages and Attorney Fees |
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Attorney’s fees are increasingly being sought and awarded in trade secret cases to litigants on both sides of the “v.” But they are not automatic. Similarly, while trade secret statutes permit the award of exemplary damages in cases of “willful” or “malicious” misappropriation, they do not necessarily follow a finding of willfulness. What criteria do and should courts use for making such awards and how should the availability of such awards shape trade secret litigation? This panel of experienced practitioners will address these issues and will use the meeting dialogue to inform their thinking as they build out their Commentary on this important topic. |
Elman, Morgan, O'Toole, Prewitt, Wilson* |
| 12:00 — 12:15 p.m. |
Break |
|
| 12:15 — 1:15 p.m. |
[Session 09] Trade Secret Litigation Case Management Issues |
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So, one of your key employees just left to begin work for a competitor. Do you have a contract with her and what does it say? Maybe you had no contract, but your training program focused on keeping certain information secret. Do you still have legal options? Perhaps your joint venture partner has terminated your collaboration agreement and announced plans to develop its own technology, maybe, alone but perhaps using jointly developed confidential information which looks suspiciously like your own. Or maybe your new employee, a prize catch, has just been slapped with an injunction prohibiting him from working for you. Every business is likely to encounter trade secret issues that may trigger litigation. This panel is a conversation discussing recurring case management issues, including problems such as deciding whether and when to sue, when and how to identify trade secrets, moving for and defending against early injunctive relief, protecting trade secrets in litigation, using forensic investigations and expert witnesses effectively, and anticipating issues surrounding privilege. Collaborate with inside and outside counsel, judges, and forensic experts as we explore these and other important trade secret litigation management issues and discuss how our published Sedona Commentaries and others on the way can help. |
Cundiff*, Fink, Gray, Klapow, Hon. McCoy, Pardue, Phillis |
| 1:15— 1:30 p.m. |
Closing Statements |
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| 1:30 — 2:00 p.m. |
Grab-&-Go Lunch (provided) |
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