Suppose that you are general counsel of a sophisticated businessa software, biotechnology, or manufacturing company. One day, you find out that a lawsuit has been filed accusing your company of misappropriating the trade secrets of another firm. The complaint makes sweeping allegations that your company misappropriated the trade secrets behind the plaintiff’s "revolutionary" and "unique" products and incorporated them into one of your company’s core products. Plaintiff immediately seeks broad discovery of your company’s proprietary information stretching back years, and asks you to provide your most sensitive product development information to plaintiff’s experts for a comparative "analysis." You prepare to turn over reams of documents and to hire your own experts to conduct a dueling analysis.
Not so fast. This scenario may well be one where defense counsel can seize the initiative, turning the tables on the plaintiff by seeking early discovery of its own. The danger here is that plaintiff will root around in your company’s product files and miraculously "find" something that it alleges was taken. Liberal pleading rules and similarities across competing products make it easy for plaintiffs to launch fishing expeditions based on superficial allegations and with little or no evidence of misappropriation. Unless this bootstrapping is stopped in its tracks, your company may be in for a long period of expensive discovery, a battle of the experts, and a complicated trial.
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