USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
to establish that any use of its trade secrets occurred. An advantage of this defence is that the plaintiff’s definition of its own trade secrets is largely immaterial to developing the defence, giving the defendant greater control over the themes and evidence it chooses to present at trial. In relation to the foregoing, defendants should investigate whether information claimed as part of the plaintiff’s trade secret is already in the public domain, as such information is by defini - tion not protectable as a trade secret. Another possible defence is to show that the plaintiff did not take proper precautions to maintain the confidentiality of the information alleged to be a trade secret. For example, if the information was shared without requiring entry into a non- disclosure agreement, or if the information was widely dispersed without adequate technologi - cal controls to keep it secure, the information may not be entitled to trade secret protection. 5.10 Dispositive Motions Parties may bring dispositive motions at several stages of the litigation, including prior to trial and, in some cases, prior to engaging in dis - covery. Defendants may wish to bring a motion to dismiss at the outset of the litigation if the plaintiff has not met the initial pleading stand - ards (see 5.5 Initial Pleading Standards). If the defect in the plaintiff’s complaint is simply that the trade secrets have not been identified with the requisite degree of particularity, courts often permit the plaintiff to amend its complaint or pro - vide a confidential statement identifying its trade secrets in greater detail. After discovery has concluded, parties often move for summary judgment on claims or issues for which there are no material facts in dispute and the movant would be entitled to judgment
as a matter of law. Motion practice at this stage has the effect of simplifying the issues for trial, if not avoiding trial altogether. If the case proceeds to trial, a party may seek judgment as a matter of law after the opposing party has presented its case at trial if the opposing party has failed to introduce evidence supporting a reasonable Litigation costs arise at every stage of the case, from the filing of a complaint to discovery to trial. Litigation costs will vary depending on the types and complexity of the trade secrets at issue, the amount and types of discovery required, the number of witnesses to depose or to prepare for depositions, the number of expert witnesses involved and many other factors. conclusion in its favour. 5.11 Cost of Litigation Costs tend to be high in trade secret cases. For example, a 2021 survey by the American Intellectual Property Law Association discov - ered that the median cost of trade secret cases with USD10 million to USD25 million at risk is USD2.75 million. For trade secret cases with over USD25 million at risk, median litigation costs rise to USD4.5 million. A trade secret plaintiff (or potential plaintiff) with compelling facts may wish to consider available sources of third-party contingent litigation financing. The litigation finance industry has seen sub - stantial growth in recent years, although this approach is not without some controversy. A party considering third-party contingent liti - gation financing should also stay apprised of the fast-moving legal landscape regarding the discovery and disclosure of third-party financ - ing arrangements – eg, Acceleration Bay LLC v Activision Blizzard, Inc, No CV 16-453-RGA, 2018 WL 798731, at *3 (D. Del. Feb. 9, 2018)
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