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Protecting your trade secret in court if you sue over its theft

On Behalf of | Jan 4, 2022 | Intellectual Property

One of the challenges that businesses face in deciding whether to file a lawsuit against someone who has misappropriated a trade secret is the fact that the secret in question has to be made public – at least within the confines of the court.

In Minnesota, plaintiffs can seek injunctive relief, damages for monetary loss and “unjust enrichment” — as well as attorney’s fees. If “willful and malicious misappropriation” is proven, defendants can receive additional “exemplary” damages.

To file a lawsuit for trade secret misappropriation, a plaintiff has to identify the secret with “reasonable particularity.” However, plaintiffs can seek to protect the information that they’re claiming is a trade secret. Courts will typically assist them in doing that.

Steps a Minnesota court can take

Under Minnesota law, “a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”

Defendants and their attorneys must be made aware of what the information is that the plaintiff is claiming as a trade secret in order to present their side of the case. It could be that the information wasn’t properly designated as a trade secret, that it didn’t have the value that a trade secret by definition has or that their actions didn’t cause harm to the plaintiff.

The best way to protect a trade secret is to have a thorough protection plan in place from the beginning. A trade secret can be a formula, program, process, technique, recipe or other information that is valuable because your competitors don’t have it. However, if you find yourself needing to take legal action against someone who has misappropriated it, it’s crucial to continue to protect that information – if it’s still a trade secret – as you go to court.