The Freedom of Information Act (“FOIA”) grants the public a powerful right of access to records in the possession of federal agencies. However, this right of access is subject to nine distinct exemptions. As demonstrated by D.C. District Court Judge Trevor N. McFadden’s opinion in Story of Stuff Project v. United States Forest Service, it is relatively easy for the federal government to withhold records under Exemption 4 which protects “trade secrets and commercial or financial information obtained from a person” which are “privileged or confidential.” 5 U.S.C. § 552(b)(4). READ MORE
Alex Fields is an associate in the Intellectual Property group of Orrick's San Francisco office.
Alex represents individuals and corporate clients in various civil matters involving patent and copyright infringement, misappropriation of trade secrets, unfair competition, breach of contract, and wage disputes.
Posts by: Alex Fields
Several months ago, we reported on the potential to protect trade secrets by encrypting information using blockchain technology. Then, earlier this month, we reported on an order out of the Southern District of California involving “CryptoKitties,” a decentralized application (or “DApp”) built on the Ethereum blockchain (using the ERC721 protocol) that allows users to securely buy, sell, trade, and breed genetically unique virtual cats.
While the potential to protect trade secrets using blockchain technology is clear, the reasoning in the CryptoKitties order raises questions regarding whether blockchain technology could constitute a trade secret in and of itself or when combined with other concepts or business methods pursuant to Federal and California law.
In some cases, there may be a severe cost – even a monetary cost – for plaintiffs who seek to materially amend their trade secrets disclosure following discovery. This is what happened to the plaintiff, Swarmify, in its lawsuit against Cloudflare, now pending in the U.S. District Court for the Northern District of California.
As we reported previously, on February 27, 2018, the court in this case denied Swarmify’s motion for a preliminary injunction for failure to show irreparable harm. At that time, the court commented that Swarmify’s trade secrets disclosure, produced pursuant to California Code of Civil Procedure Section 2019.210, was severely overbroad and “ever-shifting,” which the court characterized as a “blatant abuse of the system.” READ MORE
Competition from Chinese companies shows no signs of slowing. Likewise, allegations of trade secret theft against Chinese companies are increasingly common. In this case, the U.S. Department of Justice linked allegations of trade secret theft with wire transfers from a Chinese company in order to freeze bank accounts and real property held by several defendants charged with conspiracy to steal trade secrets. READ MORE
The Defend Trade Secrets Act of 2016 was signed into law by President Obama on May 11, 2016. While the DTSA has been on the books for over a year, relatively few courts have addressed the ex parte seizure provision and even fewer have actually granted a seizure under the DTSA. This is likely due to the DTSA’s requirement that courts order property seizures only in extraordinary circumstances. In other words, courts are hesitant to grant DTSA ex parte seizure requests unless it is clear that the alleged misappropriator would disobey a TRO or preliminary injunction, or otherwise destroy, move, or hide trade secrets. Courts continue to favor FRCP 65 TROs and preliminary injunctions to protect trade secrets from disclosure or destruction. Under FRCP 65, courts can issue TROs and preliminary injunctions, but cannot order U.S. Marshalls to seize property from a defendant without notice. The following cases are illustrative.
In trade secret cases, it is often the case that a defendant company and employee accused of trade secret misappropriation enter into a joint defense agreement. Often under such JDAs, facts, strategies and documents are shared with the understanding that they will remain confidential. READ MORE