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Trade Secrets Litigation: How Should The Case Be Resolved?

November 28, 2016

Posted in Intellectual Property

photo - IP negotiationsTrade secrets are the life blood of a business. They can be marketing plans, customer lists or product designs. Because they have value sometimes they are stolen often by an ex-employee or business associate. This theft can be seen as treachery, the business equivalent of a stab in the back. No matter how high emotions are running if a lawsuit has been filed or is being considered, the reality is the vast majority of cases settle.

Since that’s the case whether you’re a plaintiff or defendant in a trade secret theft case you should think about your interests, your goals and how they may be reached through a settlement. These cases can be very expensive in time, energy and money. If a settlement can be achieved fairly quickly with reasonable terms it may be your best option over a long litigation slog and rolling the dice at a trial.

What would be reasonable terms? They should be based on what could be attained without a settlement. Be realistic. Trying to hammer away at the other party to get terms that would be unlikely through litigation will probably be a waste of time and just antagonize the parties even more. On the other hand, setting your sights too low makes the process not worth it.

What do you need to settle? What would you like to settle? You must decide before starting negotiations.

Out of fear or anger you may seek litigation to try to get injunctive relief or a seizure of your trade secrets. But without enough facts an attempt at injunctive relief will probably fail. Another way to seek what you want is through negotiations.

You will have to contact the suspected bad actor, or their attorney, to see if there is interest in negotiation or mediation. This should be in writing, in a business-like fashion, without hostility which may end discussions before they start. You should include some details as to when and where and what information should be exchanged in advance.

You may not be able to resolve the issue before you feel you need to start litigation. Cases settle during litigation often during certain periods such as during discovery (the exchange of information and deposition of witnesses), before an important hearing or after a significant ruling. How discovery and rulings go can result in more or less leverage to reach your goals. Keep these opportunities in mind. While the case is proceeding attorneys from both sides can communicate and explore the possibilities of trying to negotiate again.

You could have separate attorneys for negotiations and litigations working on your behalf. If you can afford it, there are benefits.

  • There is much less possible confusion over the lawyer’s mission and how performance is measured.
  • An attorney can be so consumed with litigation that settlement is not a priority.
  • Both attorneys would need to work together to best help their client.

If you are involved in a trade secret theft dispute you should be thinking about what you want to achieve when all is said and done. To help you achieve those goals contact our office so we can talk about the situation, how the law may apply, your best choices to protect your rights and how a negotiated settlement may work for you.