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Litigating Trade Secret Misappropriation Claims Post-DTSA: Pursuing Claims Against Former Employees or New Employers Drafting Continuing Obligations and Cease-and-Desist Letters; Pursing Ex Parte Seizure Orders, TROs and Litigation Holds Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. THURSDAY, MARCH 30, 2017 Presenting a live 90-minute webinar with interactive Q&A Bradford K. Newman, Partner, Paul Hastings, Palo Alto, Calif. Jacqueline C. Johnson, Shareholder, Littler Mendelson, Dallas Greta B. Williams, Esq., Gibson Dunn & Crutcher, Washington, D.C.

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Page 1: Litigating Trade Secret Misappropriation Claims Post-DTSA ...media.straffordpub.com/products/litigating-trade-secret... · 30/3/2017  · LITIGATING TRADE SECRET MISAPPROPRIATION

Litigating Trade Secret Misappropriation Claims

Post-DTSA: Pursuing Claims Against Former

Employees or New Employers Drafting Continuing Obligations and Cease-and-Desist Letters;

Pursing Ex Parte Seizure Orders, TROs and Litigation Holds

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

THURSDAY, MARCH 30, 2017

Presenting a live 90-minute webinar with interactive Q&A

Bradford K. Newman, Partner, Paul Hastings, Palo Alto, Calif.

Jacqueline C. Johnson, Shareholder, Littler Mendelson, Dallas

Greta B. Williams, Esq., Gibson Dunn & Crutcher, Washington, D.C.

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Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-370-2805 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can address

the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

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Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

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LITIGATING TRADE SECRET

MISAPPROPRIATION CLAIMS POST- DTSA:

PURSUING CLAIMS AGAINST FORMER

EMPLOYEES OR NEW EMPLOYERS

Panelists: Bradford K. Newman, Partner & Chair, Employee Mobility and Trade Secret Practice, Paul Hastings LLP;

Jacqueline C. Johnson, Shareholder and Co-Chair Unfair Competition and Trade Secrets Practice Group, Littler Mendelson P.C.;

Greta B. Williams, Associate, Gibson, Dunn & Crutcher

1:00 PM EDT

Strafford Live CLE Webinars

Thursday, March 30, 2017

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5

I. THE DEFEND TRADE SECRETS ACT OF 2016: UPDATE

ONE YEAR LATER

II. STRATEGIES FOR PURSUING TRADE SECRET

MISAPPROPRIATION LITIGATION AGAINST FORMER

EMPLOYEES AND/OR THEIR NEW EMPLOYERS

III. PREVENTING TRADE SECRET MISAPPROPRIATION BY

DEPARTING EMPLOYEES

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6

I. THE DEFEND TRADE SECRETS ACT OF 2016:

UPDATE ONE YEAR LATER

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7 BACKGROUND OF LEGISLATION AND DIFFERENCES

FROM UNIFORM TRADE SECRET ACT

Federal civil remedy for the misappropriation of trade secrets

Does NOT preempt state trade secret law

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8 KEY PROVISIONS OF THE DTSA

Basic requirements for a DTSA complaint:

a civil action may be brought by owner of the trade secret

trade secret has been “misappropriated” and

trade secret is related to a product or service used in, or intended

for use in, interstate or foreign commerce

Key differences from UTSA include:

Federal jurisdiction

Remedies: DTSA prohibits injunction under certain

circumstances; punitive damages, attorney fees not available if

immunity notice requirement not satisfied

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9 KEY PROVISIONS OF THE DTSA

Injunctive relief provision – rejects inevitable disclosure

doctrine

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10 KEY PROVISIONS OF THE DTSA

Immunity provision

Protects individuals from civil or criminal liability due to

“disclosure of a trade secret” made in confidence to report or

investigate a suspected violation of the law, or filed under seal in

a court proceeding or for use in anti-retaliation lawsuit

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11 FEDERAL COURT JURISDICTION IN TRADE SECRETS

CASES: PROS AND CONS

Did federalizing trade secret law require the district courts to

“start from scratch,” leading to uncertainty among the circuit

courts?

Circuit splits?... Not really

To date, courts have been prone to conclude that state law

affords plaintiff the relief necessary

Has potential abuse arisen from the ex parte seizure

provision?

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12 GENERAL TREND: INJUNCTIVE RELIEF INSTEAD OF

DTSA SEIZURE PROVISION

OOO Brunswick Rail Mgt., et

al. v. Sultanov, et al., 2017 WL

67119 (N.D. Cal., Jan. 6,

2017)

Magnesita Refractories Co. v.

Mishra, 2017 WL 365619

(N.D. Ind. Jan. 25, 2017)

Panera, LLC v. Nettles, et al.,

2016 WL 4124114 (E.D. Mo.

Aug. 3, 2016)

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13 THE FEDERAL TRIAL COURTS’ GENERAL APPROACH

TO SEIZURE REQUESTS

An exceptional circumstance:

Mission Capital Advisors LLC v. Romaka, No. 16-civ-5878

(S.D.N.Y. July 29, 2016): Defendant failed to comply with a

previously issued TRO; the court subsequently agreed to grant a

seizure remedy

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14

II. STRATEGIES FOR PURSUING TRADE SECRET

MISAPPROPRIATION LITIGATION AGAINST FORMER

EMPLOYEES/NEW EMPLOYERS

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15 A. CONTINUING OBLIGATIONS LETTER TO FORMER

EMPLOYEE

Consider sending reminder letter to every departing employee

as a matter of course

Pros:

Former employees are on notice

Cons:

Weakens effectiveness of letters in urgent circumstances

May cause destruction of evidence

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16 B. CEASE-AND-DESIST LETTER TO FORMER

EMPLOYEE & NEW EMPLOYER

May include the following demands:

Evidence preservation

Immediate identification and surrender of all stolen material

Immediate cessation of use of company date and disclosure of

how such data has been accessed and used; and/or

Sworn confirmation that former employee has complied with

company’s demands

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17 B. CEASE-AND-DESIST LETTER TO FORMER

EMPLOYEE & NEW EMPLOYER

Tailor according to:

Data at issue

Strength of evidence

Consider how much evidence to disclose

Best prediction of how employee will respond

Categorically deny? Come clean?

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18 C. EX PARTE SEIZURE ORDERS

Civil seizure overview

Ex parte application including affidavit or verified complaint

Extraordinary circumstances: seizure of “property” “necessary to

prevent the propagation or dissemination of the trade secret”

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19 C. EX PARTE SEIZURE ORDERS

Requirements to invoke seizure provision

Equitable relief/injunction would be inadequate (irreparable

harm)

Balance of harms favors seizure and likelihood of success on the

merits

Target of seizure possesses trade secret and property to be

seized, which have been described with reasonable particularity

Target would destroy property if given notice

Seizure request has not been publicized

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20 C. EX PARTE SEIZURE ORDERS

Requirements for seizure order

Findings of fact and conclusions of law

Narrowest seizure necessary

Order protecting the seized property from disclosure

Guidance to law enforcement for seizure

Require security in case of wrongful seizure

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21 C. EX PARTE SEIZURE ORDERS

Potential issues regarding seizure orders

Post issuance hearing regarding maintenance, dissolution or

modification of order

Damages action for “wrongful or excessive” seizure

Motion for encryption at any time by any party with an interest in

the seized matter

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22 D. PRELIMINARY INJUNCTIONS

General trend: Injunctive relief instead of DTSA seizure

provision (as previously noted)

Potential types of relief:

Evidence preservation, including no use or disclosure

“Give back”

Imaging and inspection of personal computer devices

Sworn certification

Enjoining sale and/or release of product

Restriction of employment

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23 E. LITIGATION HOLD NOTICES (AND MORE)

Amendment to Federal Rule of Civil Procedure 37(e)

Old: prohibited sanctions for failing to provide ESI lost as a result

of routine, good faith operations of electronic system

New: states sanctions may be imposed if 3 conditions are met:

(1) ESI that should have been preserved is lost; (2) Party failed

to take reasonable steps to preserve; and (3) Information cannot

be restored or replaced

If conditions are satisfied,

If there is prejudice: court “may order measures no

greater than necessary to cure the prejudice,” or

If there is intent to deprive: sanctions that may be

imposed are: (a) presumption that lost information

was unfavorable, (b) jury instruction that it may

presume the information was unfavorable to the

party, or (c) case dismissal or default judgment.

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24 E. LITIGATION HOLD NOTICES (AND MORE)

Courts have set a high bar for imposing sanctions

But…severe sanctions will result from intentional destruction;

for example:

GN Netcom, Inc. v. Plantronics, Inc., No. CV 12-1318-LPS, 2016

WL 3792833 (D. Del. July 12, 2016):

Defendant’s senior executive deleted 40% of his emails and

instructed others to delete

Defendant’s litigation hold and hiring of a forensic firm to

investigate and recover the data was insufficient; additional

steps could have been taken, e.g., searching back-ups

Sanctions imposed: plaintiff’s reasonable fees and costs, $3

million in punitive sanctions, possible evidentiary sanctions,

and jury instruction that the jury may presume that missing

information was unfavorable to defendant

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25 E. LITIGATION HOLD NOTICES (AND MORE)

[Cont’d]

Brown Jordan Int'l, Inc. v. Carmicle, No. 0:14-CV-60629, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016), aff'd, 846 F.3d 1167 (11th Cir. 2017):

Involved, inter alia, CFAA claim against defendant for unlawfully accessing other employees’ email accounts

Defendant spoliated evidence on company and personal devices, including last access dates for 2.4 million files on personal laptop

Sanctioned with adverse inferences drawn against defendant

NFL Mgmt. Council v. NFL Players Ass’n., 647 Fed. Appx. 32 (2d Cir. Apr. 25, 2016) (NFL “deflategate” case; not decided under FRCP 37):

After Tom Brady destroyed his cell phone, arbitrator inferred that phone contained evidence unfavorable to him

“Any reasonable litigant would understand that the destruction of evidence, revealed just days before the start of arbitration proceedings, would be an important issue.”

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26 OTHER FILING CONSIDERATIONS

When filing a complaint, consider:

Including DTSA and state law claims

Jurisdictional issues

Specific state/federal rules (remember CCP § 2019.210?)

Filing under seal

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27

III. PROACTIVE STEPS FOR PREVENTING

MISAPPROPRIATION OF TRADE SECRETS BY

DEPARTING EMPLOYEES

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28 CONFIDENTIALITY AND NON-DISCLOSURE

AGREEMENTS

Have carefully drafted confidentiality agreements in place to

protect company trade secrets

Include clear definitions of trade secrets and confidential

information

Have qualified counsel review policies and agreements to

ensure they contain the language required under the DTSA

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29 ENCOURAGING CONFIDENTIALITY AMONG

EMPLOYEES

Use onboarding procedures to emphasize the importance of

confidential information

Non-Disclosure Agreements: include language stating that the

employee does not possess and won’t use confidential

information belonging to third parties

Conduct annual (or more frequent) sessions reminding

employees of confidentiality obligations

Take reasonable security measures to protect company trade

secrets

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30 RELATIONSHIPS WITH THIRD PARTIES

Closely monitor relationships with vendors and independent

contractors who may have access to company confidential or

trade secret information.

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31 EXIT INTERVIEWS

Require employees to sit for exit interview

During interview, require employees to certify in writing they

have returned all company property and information

Have a standard checklist for exit interviews to ensure

consistency

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32 HIGH RISK EMPLOYEES

Identify trade secret and confidential information the employee

particularly uses

Review departing employee’s computer and work activities for

unusual activity

Exit Interview and Certification

Inquire where employee is going and the position they will hold

Discretely investigate where necessary

Shut down departing employee’s access to computers

Send reminder letter informing former employee of her

ongoing obligations

Consider notifying new employer, but tread carefully to avoid

accusations of tortious interference

Forensic imaging (where threat appears significant)

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33 BRADFORD K. NEWMAN BIO

Bradford Newman founded and leads Paul Hastings’ International Employee Mobility and Trade Secret practice. According to Chambers, he is a recognized “authority on trade secret cases.”

Mr. Newman is the author of Protecting Intellectual Property in the Age of Employee Mobility: Forms and Analysis, a comprehensive treatise published by ALM that offers authoritative guidance on legal risks and practical steps companies can take to protect their IP and remedy IP theft.

Mr. Newman chairs the Firm’s Silicon Valley Employment Law practice. He routinely serves as lead trial counsel in cases with potential eight and nine-figure liability, and has successfully litigated (both prosecuting and defending) a broad spectrum of trade secret and employee mobility cases in state and federal courts throughout the country.

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34 JACQUELINE C. JOHNSON BIO

Jacqueline C. Johnson is the Co-Chair of Littler Mendelson’s Unfair Competition and Trade Secrets

Practice Group. Ms. Johnson devotes her practice to employment litigation and counseling, with

particular experience in trade secret and wrongful competition litigation and drafting and enforcement

of multi-state compliant non-competition agreements. She has handled several high-profile "bet the

company" non-competition matters, some of which have garnered national media attention. She also

co-authored Unfair Competition and Intellectual Property Protection in Employment Law - a

comprehensive treatise on noncompete agreements and unfair competition litigation for Bloomberg

BNA. She also conducts employment law and anti-harassment training for her clients, which include

restaurants, staffing companies, and high technology corporations. Jackie served as a law clerk to

the Honorable Harry Lee Hudspeth, United States District Court, Western District of Texas, from 1994

until 1996. In law school, she was a member of the Legal Research Board.

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35 GRETA B. WILLIAMS BIO

Greta B. Williams is an associate in the Washington, D.C. office of Gibson Dunn & Crutcher. She is

a member of the firm's Litigation and Labor & Employment Departments. She has represented

clients at the federal and state appellate and trial court levels, including matters involving employment

law, class actions, trade secrets and constitutional law. Ms. Williams has represented clients in a wide

range of employment matters, including those involving non-competition agreements and trade

secrets, executive employment disputes, wage-hour and discrimination laws, and whistleblower

protection laws. She has experience in trial proceedings, including direct examination of a fact

witness in a trade secrets dispute in the Delaware Court of Chancery. Ms. Williams frequently writes

on employment law and trade secret related topics. She is the co-author of the annual "Trade

Secrets Litigation Round-Up" published in BNA's Patent, Trademark & Copyright Journal.

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21 Offices ACROSS THE AMERICAS, ASIA,

AND EUROPE

1 Legal Team TO INTEGRATE WITH THE STRATEGIC

GOALS OF YOUR BUSINESS

THE AMERICAS

Atlanta

Chicago

Houston

Los Angeles

New York

Orange County

Palo Alto

San Diego

San Francisco

São Paulo

Washington, D.C.

ASIA

Beijing

Hong Kong

Seoul

Shanghai

Tokyo

EUROPE

Brussels

Frankfurt

London

Milan

Paris

36

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THE AMERICAS ASIA EUROPE

Atlanta

1170 Peachtree Street, N.E.

Suite 100

Atlanta, GA 30309

t: +1.404.815.2400

f: +1.404.815.2424

Chicago

71 S. Wacker Drive

Forty-fifth Floor

Chicago, IL 60606

t: +1.312.499.6000

f: +1.312.499.6100

Houston

600 Travis Street

Fifty-Eighth Floor

Houston, TX 77002

t: +1.713.860.7300

f: +1.713.353.3100

Los Angeles

515 South Flower Street

Twenty-Fifth Floor

Los Angeles, CA 90071

t: +1.213.683.6000

f: +1.213.627.0705

New York

200 Park Avenue

New York, NY 10166

t: +1.212.318.6000

f: +1.212.319.4090

Orange County

695 Town Center Drive

Seventeenth Floor

Costa Mesa, CA 92626

t: +1.714.668.6200

f: +1.714.979.1921

Palo Alto

1117 S. California Avenue

Palo Alto, CA 94304

t: +1.650.320.1800

f: +1.650.320.1900

San Diego

4747 Executive Drive

Twelfth Floor

San Diego, CA 92121

t: +1.858.458.3000

f: +1.858.458.3005

San Francisco

55 Second Street

Twenty-Fourth Floor

San Francisco, CA 94105

t: +1.415.856.7000

f: +1.415.856.7100

São Paulo

Av. Presidente Juscelino

Kubitschek, 2041

Torre D, 21º andar

Sao Paulo, SP

04543-011

Brazil

t: +55.11.4765.3000

f: +55.11.4765.3050

Washington, D.C.

875 15th Street, N.W.

Washington, D.C. 20005

t: +1.202.551.1700

f: +1.202.551.1705

Beijing

26/F Yintai Center Office Tower

2 Jianguomenwai Avenue

Chaoyang District

Beijing 100022, PRC

t: +86.10.8567.5300

f: +86.10.8567.5400

Hong Kong

21-22/F Bank of China Tower

1 Garden Road

Central Hong Kong

t: +852.2867.1288

f: +852.2526.2119

Seoul

33/F West Tower

Mirae Asset Center1

26, Eulji-ro 5-gil, Jung-gu,

Seoul, 04539, Korea

t: +82.2.6321.3800

f: +82.2.6321.3900

Shanghai

43/F Jing An Kerry Center Tower II

1539 Nanjing West Road

Shanghai 200040, PRC

t: +86.21.6103.2900

f: +86.21.6103.2990

Tokyo

Ark Hills Sengokuyama Mori Tower

40th Floor, 1-9-10 Roppongi

Minato-ku, Tokyo 106-0032

Japan

t: +81.3.6229.6100

f: +81.3.6229.7100

Brussels

Avenue Louise 480-5B

1050 Brussels

Belgium

t: +32.2.641.7460

f: +32.2.641.7461

Frankfurt

Siesmayerstrasse 21

D-60323 Frankfurt am Main

Germany

t: +49.69.907485.0

f: +49.69.907485.499

London

Ten Bishops Square

Eighth Floor

London E1 6EG

United Kingdom

t: +44.20.3023.5100

f: +44.20.3023.5109

Milan

Via Rovello, 1

20121 Milano

Italy

t: +39.02.30414.000

f: +39.02.30414.005

Paris

96, boulevard Haussmann

75008 Paris

France

t: +33.1.42.99.04.50

f: +33.1.45.63.91.49

For further information, you may visit our home page at

www.paulhastings.com or email us at [email protected]

www.paulhastings.com ©2017 Paul Hastings LLP

OUR OFFICES 37