From a substantive standpoint, corporate defendants often assert that the technical data and internal memoranda typically produced or sought in discovery contain “trade secrets” or legally confidential information. The legal criteria for a trade secret will be discussed in a moment. From a procedural standpoint, the typical proposed order sought by these defendants gives them the right to unilaterally determine what documents should be protected. That is, the defendant itself is given the sole and exclusive right to select the documents which would then be subject to the restrictions of the court’s order. Neither plaintiffs counsel nor the court is given the opportunity to participate in the initial selection process. Further, in making its determination, the defendant is obviously guided only by its own subjective criteria.
Burden of Proof
Corporate parties very often fail to carry their burden of showing “good cause”—which, as a matter of law, they must do to justify the restrictive order they seek. In an effort to make the requisite showing concerning the likelihood of harm, the defendants assume the danger of a public disclosure. First, plaintiffs should submit that, even accepting the truth of this assumption, the defendant has completely failed to carry its burden of showing that a public disclosure of the requested documents would result in a “clearly defined and very serious” competitive injury. Further, and of great significance, plaintiff’s counsel wish to make it emphatically clear that they do not now, nor have they ever sought to disseminate the requested documents to the manufacturer’s competitors; plaintiffs always remain willing to agree to an order that forbids disclosure of the requested documents to a defendant’s competitors, but does not prevent disclosure to other attorneys with similar cases.
Overview of the Law
- Discovery in General
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