USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
ing within seven days after the order issues. The burden remains on the movant to prove the facts necessary to support the seizure; if the movant fails to meet its burden, the order will be dis- solved or modified. 5.7 Obtaining Information and Evidence In federal court, once litigation has commenced, the parties can obtain discovery from each other pursuant to the Federal Rules of Civil Procedure. Each state also has its own rules governing dis - covery. Discovery methods in both state and federal courts typically include the following: • interrogatories; • requests for the production of documents and other evidence; • requests for admissions; and • pre-trial depositions under oath, either of individuals or of employees designated to testify on behalf of a corporate entity. In trade secret litigation where the misappro - priation of competitively sensitive documents or source code is at issue, the trade secret owner may wish to seek forensic inspection of devices in the possession of the alleged misappropria - tor or its employees. Moreover, as companies embrace distributed workforces and increasingly rely on novel tools for managing and distributing information, parties seeking discovery should think creatively about information repositories where proof of misappropriation might exist. For example, discovery requests may need to go beyond traditional email and documents and consider cloud storage services, “ chat ” or other synchronous communication tools (such as Slack), collaboration tools or “ wikis ” (such as Confluence or Trello), issue and project track - ing tools (such as Jira), source code manage - ment tools (such as GitHub) and virtual meeting
recordings (such as those generated in WebEx or Zoom). 5.8 Maintaining Secrecy While Litigating Plaintiffs will need to strike a careful balance between under-disclosure and over-disclosure regarding the claimed trade secrets. For exam - ple, a plaintiff must provide sufficient detail in its complaint to survive a motion to dismiss (see 5.5 Initial Pleading Standards) but must also avoid disclosing trade secret information in a publicly filed complaint or other pleading. Prior to exchanging any sensitive business, technical or financial information, the parties should stipu - late to a protective order that limits disclosure of such information to the attorneys of record for each party as well as certain designated persons (such as senior in-house counsel or expert wit - nesses). More stringent requirements may be sought for particularly sensitive material, such as software source code or technical schematics. In all cir - cumstances, the trade secret owner should take care to properly designate the material it deems a trade secret, and any descriptions thereof, under the appropriate degree of confidentiality provided by the stipulated protective order. Liti - gants should pay careful attention to jurisdiction and judge-specific rules for filing materials under seal or with redactions. 5.9 Defending Against Allegations of Misappropriation Defendants accused of trade secret misap - propriation have several strategies available to them, depending on the facts of the case. One particularly strong defence is independent development: if the defendant can show that it relied entirely on its own information or publicly available information in developing the relevant product or service, the plaintiff will not be able
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