The Sedona Conference Working Group 12 Inaugural Meeting 2018

[mission statement for corresponding Drafting Team 1: One of the most important issues in any case alleging trade secret misappropriation is the identification of the asserted trade secrets. This WG12 Commentary on the Identification of Trade Secrets will provide balanced, consensus guidelines for courts and litigants to use regarding when and how this identification must take place, what this identification must contain, and what revisions to the identification are permitted as the case proceeds.]

[mission statement for corresponding Drafting Team 3: Equitable relief must, by definition, be tailored to the circumstances. The WG12 Commentary on Equitable Relief in Trade Secret Litigation will focus on helping parties and courts identify and assess the wide range of equitable (i.e., non-monetary) remedies that may be available at various stages of trade secret litigation and the circumstances under which they may be most suitable. Among the remedies to be considered are mandatory and prohibitory relief; monitoring by third parties, certifications, and other affirmative acts to protect trade secrets; and pre- and post-trial restraints on the activities of those alleged to possess or to have used or improperly received trade secrets.]

[mission statement for corresponding Drafting Team 5: An essential legal requirement of enforceable trade secrets is that they are the subject of “reasonable efforts” by the holder to keep them secret. And as a practical matter, businesses want to avoid loss or contamination of their valuable information assets. Increasingly, this objective is reinforced not only by owners of the business but also by government agencies who are promoting de facto standards for information security. The WG12 Governance and Management of Information Security and Trade Secrets drafting team will provide guidance for industry and the courts about how organizations should prepare and implement strategies for managing the integrity of their trade secret assets.]

[mission statement for corresponding Drafting Team 4]: Litigation of trade secret disputes requires significant exchange of presumptively secret information during discovery, as well as presentation of such information to courts. The WG12 Commentary on Protecting Trade Secrets in Litigation About Them will propose balanced guidelines for courts and counsel to ensure that rights sought to be protected by trade secret law are not unnecessarily compromised by the litigation process.

[mission statement for corresponding Drafting Team 7: Large damage awards in trade secret litigation capture our attention, but compared to other areas of intellectual property one finds less specific guidance for courts and industry about calculating damages. To an extent this reflects the law’s genesis in tort, expressed more in principles than in rules; but finding common approaches and identifying differences would be helpful. The WG12 Commentary on Monetary Relief in Trade Secret Litigation will focus on clarifying what theories of recovery are generally available, and the variations among state laws; when certain remedies can and cannot be combined; the relationship between royalty determination in trade secret and patent litigation; coordinating remedies for trade secrets misappropriation with related claims under other legal theories; and recommended practices regarding timetables for disclosure of damage claims.]

[mission statement for corresponding Drafting Team 6: Many businesses operate internationally, even if only to deal with suppliers or other business partners. In an age of global markets and digital communications, trade secret information increasingly moves across borders where it may be subject to different legal standards and procedures. This Drafting Team will examine issues arising from this reality, focusing its guidance on U.S.-based firms who share trade secrets across borders voluntarily or who seek to avoid or remedy the misappropriation of their trade secrets abroad and U.S. courts faced with trade secret disputes that involve at least some conduct occurring outside this country.]

[mission statement for corresponding Drafting Team 2: Every company must rely on its employees to safeguard its trade secrets. But, because people are fallible, those employees also pose the greatest risk to those trade secrets. And, those risks are present at every stage of the employee life cycle relationship, from the recruiting process through post-employment. All too often, companies and employees alike are insufficiently aware of the risks or how to mitigate them. It is therefore imperative that a company that wishes to protect its trade secrets properly educate itself and its employees, and train and manage its employees over the life cycle of the employee relationship. The WG12 Commentary on the Employee Life Cycle Related to Trade Secrets will develop guidelines for new employers to avoid unintentionally receiving or benefiting from the trade secrets of another company and for employees to avoid unintentionally placing their employer’s trade secret information at risk of misappropriation.