USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
the discovery and disclosure of third-party financing arrangements – eg, Acceleration Bay LLC v Activision Blizzard, Inc , 2018 WL 798731, at *3 (D. Del. Feb. 9, 2018) (ordering the production of emails exchanged between the plaintiff and litigation financier).
they provide direct testimony. After the party with the burden of proof rests, the opposing party presents its case, consisting largely of the same elements. The case is then submitted to the jury to render a verdict, or to the judge for an opinion and order in a bench trial. Trial length can vary considerably. While courts tend to allot a minimum of three to five days for trade secret trials, an exceptionally complex trial involving numer - ous fact and expert witnesses or novel technologies could stretch to three months or more. 6.3 Use of Expert Witnesses Expert testimony is often important in trade secret mis - appropriation cases as a means of explaining complex issues to the finder of fact, especially where the trade secrets at issue are technical in nature. Experts may be used for a variety of purposes, including to sup - port or rebut the contentions that a party possesses protectable trade secrets and takes reasonable steps to protect them, and that the defendant misappropri - ated and used the trade secrets in its own products or services. Computer forensic experts may also provide valu - able opinions and testimony related to the access and misappropriation of trade secrets and computer systems and networks. As in other types of litigation, economic and financial experts supporting damages remedies may be useful to estimate or forecast liability for the misappropriation of the trade secret(s) under any number of potential damages theories. 7. Remedies 7.1 Preliminary Injunctive Relief To obtain a preliminary injunction, a trade secret plain - tiff generally must establish that: • it is likely to succeed on the merits of its trade secret misappropriation claim; • it is likely to suffer irreparable harm in the absence of preliminary relief; • the balance of equities tips in its favour; and • an injunction is in the public interest.
6. Trial 6.1 Bench or Jury Trial
Although trade secret plaintiffs seeking damages are generally entitled to a jury trial, they should consider the likely composition of the jury pool and the pros and cons of jury trials before demanding a jury trial. Trade secret cases involving exceptionally complex technologies within narrow industries run the risk of confusing a jury, so plaintiffs should take into account the range of educational backgrounds and industry affiliations of potential jurors. In cases involving alleged misappropriation by a for - mer employee, jurors may be more sympathetic to typical defensive themes such as the employee’s right to take their expertise to a new job without fear of reprisal. Nevertheless, due to the comparatively high - er damages awarded by juries, jury trials will often be preferable to bench trials for most trade secret plaintiffs. In certain jurisdictions, however, measures of damages such as unjust enrichment may not be triable to a jury and will instead be submitted for adju - dication by the court. 6.2 Trial Process After the close of discovery and the resolution of any dispositive motions, the case will proceed to trial on any remaining claims or issues. Depending on the jurisdiction and individual practices of the court or judge, a trial may be scheduled near the outset of the litigation at a case management conference, or it may be scheduled on relatively short notice after it is clear to the judge that the case is “trial-ready”. As in any other civil litigation, the party with the bur - den of proof is given the opportunity to present its case, which may consist of an opening statement, testimony of fact and expert witnesses, and a clos - ing argument. The opposing party will generally have the opportunity to cross-examine each witness after
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