In a trade secrets suit, one of the plaintiff’s principal objectives is at least ostensibly to preserve the confidentiality of its trade secrets. The defendant, in turn, may attempt to defeat the plaintiff’s claim by showing that the plaintiff failed to take reasonable measures to safeguard confidentiality before commencing suit. In short, protecting data security is both an essential prerequisite and a principal objective of trade secrets litigation.
In this context, outside counsel should be on alert that heightened vigilance is necessary to protect the information received from the client and from the opposing party in discovery. This issue is of course not unique to trade secrets litigation. For example, as highlighted by Comment 3 to Rule 5.3 of the Model Rules of Professional Conduct, any attorney using a third-party service to transmit client information has an affirmative professional obligation to evaluate the security of such transmissions. However, in trade secrets litigation, such issues should be an immediate and continuous concern. Both sides in a trade secrets litigation have an obvious economic interest in the security of the documents and information disclosed to outside counsel, and counsel must proceed with due care, so that their own actions do not undermine the parties’ substantial stake in the outcome of the dispute.