JAPAN Law and Practice Contributed by: Miki Goto, Ryo Murakami and Akihito Ishii, Anderson Mori & Tomotsune
5.8 Maintaining Secrecy While Litigating Under the Code of Civil Procedure, a party may move for a court decision to prohibit persons other than the parties to the litigation from inspecting or making copies of the case records (which are generally available to the public for inspection) on the ground that the records con - tain a trade secret. The UCPA provides that the parties may move for a court to issue a protective order to preserve the secrecy of trade secrets contained in briefs and evidence. The addressees of such order may include the parties and their representa - tives, officers, employees or attorneys. The moving party must make a prima facie case showing that the use of such trade secret for purposes other than to carry out the lawsuit, or the disclosure of such trade secret, would harm the party’s business activities using such trade secret. A person who violates a protective order will be subject to criminal sanctions. When a party to the trade secret litigation is called as a witness to such litigation, and is unable to give sufficient testimony regarding the trade secrets because of the harm to its busi - ness activities, and such testimony is essential for an appropriate judicial decision on whether there has been a misappropriation, the court may conduct such testimony in a non-public hearing upon the unanimous decision of all the judges constituting the panel. The UCPA provides for several measures for protecting trade secrets in criminal proceedings, including an order not to disclose matters that will result in the identification of trade secrets in the public courtroom, limitation of questions in
judge to suspect that the party is trying to conceal certain facts unfavourable to such party. • The same set of rules apply to the submission of objects (eg, accused products) for inspec - tion by the court. • The court may, upon a motion by a party to a lawsuit, order an expert to give their opinion on the calculation of damages. The parties will be obliged to provide explanations neces - sary for the opinion. Further, a party may seek the following means provided under the Code of Civil Procedures. • A party may move for a court to issue a request for voluntarily producing documents. This is used when a third party (non-party to the lawsuit), especially a public agency, corporation or legal entity, holds the relevant documents. Although this is not a legally binding order, such a third party often volun - tarily fulfils the request because the request is made in the name of the court. • A party may move for a court order obliging the other party or a third party to produce documents held by it. A violation may lead to certain sanctions. However, documents containing technical or occupational secrets are exempted from such order, and the use - fulness of this order may be limited in trade secret litigation. • The same set of rules applies to the submis - sion of objects (eg, accused products) for inspection by the court. • To preserve relevant evidence before a law - suit is filed, a party may file a petition for an examination of evidence in advance. • For example, if the misappropriating party is expected to destroy data once a lawsuit is filed, the judge may visit its factory and record the data stored there.
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