The dirty secret of trade secret disputes is that even if you win, it can be difficult to get back to where you started. It’s like closing the stable door after the horses have run off with trade secret disputes. A court or arbitration panel may not have trouble reaching findings of fact and conclusions of law, but the secrets are still out there. And ensuring that the trade secret information is entirely removed from the offending company’s systems is a lot harder than rounding up wild horses.

Enter the forensic neutral. Forensic neutrals can help sort out the technical messes that often accompany trade secret disputes by:

•        Helping to draft compliance with forensic protocols;
•        Ensuring adherence to said protocols;
•        Determining the existence and veracity of digital evidence;
•        Forensically analyzing deleted or corrupted data for evidence of wrongdoing;
•        Helping to obtain injunctive or preliminary relief, including “ex parte seizure” orders under the 2016 Defend Trade Secrets Act of 2016 (DTSA);
•        Performing settlement-related or court-ordered purging of data from systems;
•        Validating the removal of data from systems; and
•        Auditing systems to ensure compliance with a court order or regulatory mandate.

The DTSA provides for a variety of situations in which a forensic neutral can be valuable. It states that an “owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”

As remedies, parties can seek damages and/or injunctive relief and, in certain situations, the DTSA allows for “ex parte seizure” of property if “necessary to prevent the propagation or dissemination of the trade secret.” Because ex parte seizure applications are brought by the plaintiff without any notice to the defendant, and thus subject to potential abuse by an unscrupulous plaintiff, the DTSA sets out an extremely high standard that the plaintiff must meet, via sworn affidavit or verified complaint, to obtain an ex parte order. Forensic neutrals can be especially useful when “ex parte seizure” or other types of preliminary, injunctive relief is sought, as these types of relief often require the highly technical identification, collection, transfer and deletion of trade secret data.

To read the full article, go to Legal Executive Institute