Interviewing Witnesses and Conducting Investigations Before, During, and After Trade Secret Disputes

Trade secret disputes are fact-intensive, fast-moving, and highly emotional disputes. This can be a risky combination for both lawyers and their clients. The trade secret owner, fearing its information is at risk, wants to move quickly to prevent harm. In a rush to accuse the other side, a would-be plaintiff may overlook basic questions and key sources of information, miss its strongest claims, oversell arguments it cannot support with evidence, or ignore contrary facts. Focusing only on an indignant or rote narrative—“I didn’t do anything wrong” or “your information isn’t a trade secret at all” may be a natural counterpunch, but it may not be grounded in fact. A deeper investigation may uncover better defenses or lead to the discovery of facts that will be critical to putting the dispute to rest.

This program focuses on the facts parties on both sides should focus on early and over the course of an information-sharing relationship. Importantly, most trade secret disputes should not come “out of the blue.” Thoughtful parties on both sides of an information-sharing relationship (employer/employee, vendor/customer, or other B2B relationship) may be able to think about and plan for what could go wrong long before it ever does, avoiding many disputes altogether and streamlining progress to a successful resolution if they do arise.

In this program, we will be discussing facts that parties on both sides should consider as they assess and manage their trade secret assets and disputes. We will consider:

• How businesses can evaluate, before there is a dispute, whether information they are disclosing to or receiving from others is a trade secret
• Assessing why particular information has value and whether the value comes from secrecy
• Learning what is “generally known” in the industry at issue and what can be readily ascertained by others in the industry
• Determining whether particular information has been protected as a trade secret and evaluating the impact of any “lapses” in protections
• Investigating “information flows” within and outside an organization to learn who has had access to information at issue and why 
• Getting behind “fears” or “denials” and developing admissible evidence regarding misappropriation
• Learning who the critical witnesses and information sources may be inside and outside your client’s organization

This program is suitable for lawyers and managers counseling any business that shares or receives information with others—which is every business.

Learning Objectives:

• Recognize when to begin helping your clients think about potential trade secrets disputes
• Identify and dismantle “boilerplate” arguments and “conclusory” assertions
• Analyze and “reality check” internal evaluations of a dispute
• Identify internal and external sources of evidence that will hold up in court
• Work with forensic experts, offensively and defensively
• Adapt to new information learned through discovery
• Assist clients with defining “success” in a trade secret dispute

Production Date: 5/19/2024