JAPAN Law and Practice Contributed by: Makoto Hattori, Rikita Karakawa, Wataru Takagishi and Taku Shibazaki, Abe, Ikubo & Katayama
to the dismissal of the claim. Plaintiffs must define the secret with enough particularity to distinguish it from publicly known information and to allow the court to assess the scope of the alleged infringement. Regard - ing the specificity of the claim, there is no statutory “heightened particularity” standard applicable to trade secret claims. 5.6 Seizure Mechanisms Under the Code of Civil Procedure (Articles 234 to 242), a mechanism known as the “preservation of evi - dence” allows a party to secure evidence before it is lost or tampered with. A judge, rather than a private party or police officer, carries out the preservation by visiting the location where the evidence is held. While this procedure is technically available for trade secret litigation, it is less frequently used compared to other areas such as software copyright infringement. Courts are often cautious about granting these motions due to significant concerns regarding the potential for accidental leaks or misappropriation of trade secrets during the preservation process itself. Unlike criminal procedures, these civil mechanisms do not provide for the physical seizure of products or evidence through the use of force. Instead, the court often request the parties to disclose evidence volun - tarily. While a party may physically refuse to comply with such an order, the law provides a strategic deter - rent against such non-cooperation. If a defendant refuses to disclose the evidence without a justifiable reason, the court may consider this refusal as a signifi - cant factor when evaluating the facts in subsequent proceedings. A plaintiff can file a motion for the preservation of evidence either before or after the commencement of a lawsuit, though it is most commonly pursued beforehand. To succeed, the applicant must provide prima facie evidence ( somei ) showing that it would be impossible or extremely difficult to examine the evidence if they were to wait for the standard litigation process. The court typically conducts these proceed - ings without prior notice to the defendant to ensure the element of surprise and prevent the disposal of evidence.
Once the court issues an order, the judge examines the relevant documents or objects at the site and records the findings in an official protocol. This pro - tocol then serves as formal evidence in the subse - quent trial regarding the alleged misappropriation. It is important to note that the law does not allow for an appeal against a court’s decision to grant an order for the preservation of evidence. 5.7 Obtaining Information and Evidence Outside formal litigation, plaintiffs can gather evidence by investigating internal records or seeking voluntary information from relevant third parties. Attorneys may also utilise inquiries through the local bar association to request specific information from various public or private organisations. Furthermore, there is a growing trend of utilising evi - dence gathered by law enforcement agencies through their compulsory criminal investigations. Since trade secret misappropriation frequently results in criminal prosecution under the UCPA, police and prosecutors can secure critical evidence using search and seizure powers that are unavailable to parties in civil litiga - tion. Civil plaintiffs increasingly seek to access these criminal case records to bolster their claims, providing a vital source of evidence that would be otherwise dif - ficult to obtain through independent efforts. Once a lawsuit is pending, the UCPA provides sev - eral mechanisms for obtaining evidence with judicial assistance. Under Article 6, if a defendant denies the plaintiff’s specific allegations of infringement, they are obliged to clarify the actual aspects of their own con - duct. This prevents defendants from relying on vague denials and helps the court identify the true nature of the disputed activities. Furthermore, the court can issue document production orders to compel the disclosure of materials essen - tial to proving misappropriation. To balance the need for evidence with the protection of confidentiality, the court may conduct “in-camera” proceedings where the judge alone reviews the documents to determine their necessity.
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