In trade secrets litigation, it is often critical to expeditiously obtain protection from further disclosure or continued misappropriation of the trade secret at issue through a motion for preliminary injunction.  Courts are quick to point out, however, that preliminary injunctions are “an extraordinary and drastic remedy,” and are only to be granted if the movant, “by a clear showing, carries the burden of persuasion” as to each element of the preliminary injunction test.  Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (observing that to obtain preliminary injunctive relief, a plaintiff must generally demonstrate that: “1) he is likely to succeed on the merits of such a claim; 2) he is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in his favor; and 4) that an injunction is in the public interest.”).

Continue Reading Trade Secret Litigants Take Note: California District Court Provides Guidance on Obtaining a Preliminary Injunction and Expedited Discovery

Courts often require a plaintiff to identify a trade secret with reasonable particularity before commencing discovery (and it is a statutory obligation in California).  But frequently a trade-secret plaintiff does not know precisely which trade secrets have been taken by the defendant before discovery commences.  In the recent Ninth Circuit decision InteliClear v. ETC Global Holdings (9th Cir. Oct. 15, 2020), the appellate court held that, under its particular circumstances, a plaintiff who had not adequately specified its trade secrets at issue should nevertheless be permitted to engage in discovery for this purpose, where the plaintiff had shown discovery could provide the necessary information.  (Disclaimer: Sheppard Mullin served as co-counsel to the successful appellant-plaintiff in this case.)
Continue Reading Trade Secret Takeaways from the Ninth Circuit’s Decision in InteliClear, LLC v. ETC Global Holdings, Inc.

As previously noted in this forum: “[p]reservation of electronically stored evidence (ESI) may be critical in trade secret cases.”  See 3 Steps in Furtherance of Avoiding Devastating Spoliation Sanctions in Trade Secrets Misappropriation Litigation.  This is true for both plaintiffs and defendants, as the fate of modern trade secrets claims regularly turns on the existence or absence of a digital trail left by the accused appropriator.  Given the often transitory nature of this evidence, potential litigants must carefully and proactively preserve it in order to mount an effective case or defense.  This is especially true for early-stage entities with limited resources, as the “consequences for spoliation of electronically stored information may be severe” – including case terminating sanctions that may be devastating to such an entity’s continued operation.  See id.
Continue Reading Self-Driving Cars and Auto-Deletes: An Epic E-Discovery Mismatch

Here, we provide a cautionary tale of what can happen to a business that fails to preserve documents that are potentially relevant evidence to pending or threatened trade secrets litigation, and offer some takeaways for businesses that would like to avoid such dire straits.[1]
Continue Reading A Cautionary Trade Secrets Tale: Failure To Preserve Potentially Relevant Evidence