Trade Secrets - Working Group 12

Formation of New Drafting Team

We are pleased to offer a new opportunity to become more involved in Working Group 12 (WG12). The Steering Committee is forming a new Drafting Team. Please see the description below. If interested, follow the subsequent instructions for applying and note that the deadline for submitting applications is Wednesday, February 19, 2025.

New Drafting Team:

1. Willfulness Damages and Attorney Fees

Both the Defend Trade Secrets Act (DTSA) and the Uniform Trade Secrets Act (UTSA) allow for the recovery of exemplary damages under certain circumstances, typically where there is a showing of a “willful and malicious” misappropriation. Similarly, both the DTSA and the UTSA allow for the recovery of attorneys’ fees under certain circumstances, typically where there is a showing that a claim of misappropriation is made in “bad faith,” a motion to terminate an injunction is made or opposed in “bad faith,” or the trade secret was “willfully and maliciously” misappropriated.

Also, neither the UTSA nor the DTSA defines the terms “willful and malicious” or “bad faith.” Thus, courts often rely on resources such as state law, out-of-state case law, legal treatises, and legal dictionaries to aid in defining the terms, meaning that there is not uniformity in the definitions either.

Finally, there is a lack of uniformity with respect to certain procedural issues surrounding the award of exemplary damages and attorneys’ fees in trade secret litigation, including: whether a judge or jury makes the determination as to the availability and amount of exemplary damages; the standard of proof for establishing an entitlement to exemplary damages or attorneys’ fees; other limitations placed on the amount of exemplary damages or attorneys’ fees; and the procedural stage and extent to which discovery in support of a request for exemplary damages and/or attorneys’ fees is warranted. This drafting team will survey the existing law of exemplary damages and attorneys’ fees under the DTSA, UTSA, and New York law, and will determine whether a consensus can be reached around certain principles to aid practitioners and the judiciary in addressing the issues of exemplary damages and attorneys’ fees in trade secret litigation. The target completion date for the initial Commentary draft is September 10, 2025.

Expectations of Drafting Team Member

Drafting Team members are expected to make the following commitments:

• Participation in a Drafting Team is a benefit of individual Sedona Conference Working Group Series membership. All Drafting Team members must keep their membership current at all times during the process.
• As the name suggests, Drafting Team members are encouraged to think creatively and may even challenge the premise of the Drafting Team, as warranted.
• Drafting Team members are expected to regularly join and participate in Drafting Team virtual meetings. Drafting Team leaders will take attendance for all meetings and track meeting participation and contributions. One or more Drafting Team members will be asked to take notes of Team meetings.
• Drafting Team members will be expected to draft or assist in drafting portions of the Commentary and/or perform research as needed.
• Drafting Team members are expected to review all team drafts that are circulated, and comment and/or revise/edit as necessary.
• Drafting Team members are expected to dialogue, not debate, and work collaboratively as part of a team to achieve consensus.
• Drafting Team members are strongly encouraged (but not required) to attend WG12 meetings where their work product is presented to the membership through a panel discussion and dialogue.

It is critical that all Drafting Team members are active, engaged participants in the Commentary drafting efforts to produce high-quality work product in a limited timeframe.

Factors in Drafting Team Selection:

The Steering Committee will work to ensure that a wide range of perspectives and backgrounds are represented. Please keep in mind, however, we do not seek differing perspectives so that one may advocate on behalf of a particular perspective or constituency; we seek differing viewpoints, backgrounds, and experiences to build consensus that is beneficial to all stakeholders. Perspectives we will seek to have represented may include, among others:

• In-house counsel
• Outside counsel
• Judges
• Judicial clerks
• Government counsel
• Academics
• Service providers/Technology companies
• Small firms/Solo practitioners

We will likely have more well-qualified, well-rounded applicants than we have spots available. As a result, we may have a ranked waiting list. Drafting Team member participation and contributions will be evaluated by the Steering Committee as liaisons to the Team. If a member is unable to maintain the commitment to actively participate and contribute, it is possible that the member may need to be replaced to timely achieve the Drafting Team’s objectives.

How to Apply

NOTE: If you are not currently a Working Group member but are interested in participating, become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or (602) 258-4910.

To be considered for the Drafting Team, please submit your responses via SurveyMonkey by February 19, 2025. Please keep your answers brief, with no more than 50 words per response.

Click Here to Apply.

Please do not be discouraged if you are not selected. Because The Sedona Conference is a self-selected group of engaged, proactive members, we get many more eminently qualified applicants for each Team than we can take. If you do not get selected, please try again! Your application and eagerness to be involved are favorably considered the next time you apply for a Drafting Team. Also, remember that as a member of WG12, you will have the opportunity to review and comment on any member-only work product written by this Team.

Important Note

We encourage members of the Brainstorming Group on this topic that developed the Project Charter for this new Drafting Team to submit applications to participate on this Drafting Team. Understand, though, that while being a member of the Brainstorming Group factors into consideration for Drafting Team membership, it is not a guarantee that you will be selected. This is because Drafting Teams are usually smaller than Brainstorming Groups, function over a longer period of time, and require a particular balance of perspectives and experiences to build a consensus-based document that is beneficial to all stakeholders.