California Labor &
Employment Law Blog
Nov 6, 2009

Party Claiming Misappropriation Must Identify Trade Secrets

Topics: Court Decisions

California employers who have litigated claims for misappropriation of trade secrets are likely familiar with the requirement that the party claiming its trade secrets were misappropriated must identify, with "reasonable particularity," the trade secrets that were misappropriated. Until this identification is made, that party cannot take discovery from the other side regarding the trade secret claims. A California court reiterated this principle this week in Perlan Therapeutics, Inc. v. Superior Court (NexBio). The Perlan case involves alleged trade secrets related to development of treatments for viral infections. The court, holding that Perlan did not sufficiently identify its trade secrets, applied the principle that "in a highly specialized technical field, a more exacting level of particularity may be required to distinguish the alleged trade secrets from matters already known to persons skilled in that field." The court found that Perlan's vague description of its alleged trade secrets failed to meet this standard.

Interestingly, the court also frowned on Perlan's attempt to include broad, catch-all language in its identification statement, to preserve the ability to add additional trade secrets to the list of those misappropriated later in the case. "Perlan is not entitled to include broad, catch-all language as a tactic to preserve an unrestricted, unilateral right to subsequently amend its trade secret statement. If Perlan does not know what its own trade secrets are, it has no basis for suggesting defendants misappropriated them. Nor is Perlan entitled to hide its trade secrets in plain sight by including surplusage and voluminous attachments in its trade secret statement."

The case contains a good discussion of what identification with "reasonable particularity" means under Code of Civil Procedure section 2019.210, and canvasses some of the recent California cases addressing this issue. The decision is here.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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