Texas Trade Secret Litigation

  • ID: 4411219
  • Book
  • Region: United States
  • 268 Pages
  • ALM Media, LLC
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or General Counsel, Business Litigators, Intellectual Property Attorneys, Employment Attorneys, Those Defending a Claim.

A Practical Guide to the Changing Landscape.

Because modern technology now permits easy access to confidential information from virtually any location, and because of the increasingly fluid employment market, trade secret claims are fast becoming a central concern for business litigators in Texas. In this brand-new practice resource, Trey Cox and Chris Patton, veteran litigators with Lynn Pinker Cox & Hurst, LLP, a litigation boutique in Dallas, bring clarity to evolving legal standards for these types of claims, and the procedural issues that commonly arise in the context of state and federal trade secret claims.

  • Field Client Questions
  • Narrow Research Focus
  • Follow this Area as it Develops Year to Year

Texas Trade Secret Litigation covers:

  • What a Trade Secret is and Who Owns It
  • Misappropriation
  • Planning and Initiating a Trade Secret Lawsuit
  • Discovery in a Trade Secret Lawsuit
  • Responding to the Trade Secret Lawsuit
  • Expert Witnesses In Trade Secret Cases
  • Trying a Trade Secrets Case
  • Monetary and Equitable Relief; Defend Trade Secrets Act of 2016

Also Included!

  • Sample Documents and Forms
  • Table of Cases
  • Table of Statutes
  • Index
  • Texas Uniform Trade Secrets Act (enacted in 2013)
  • Uniform Trade Secrets Act
  • Federal Defend Trade Secrets Act (enacted in 2016)
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Chapter 1: The Foundation
1-1    INTRODUCTION
1-2    POLICY BACKGROUND ON TRADE SECRET CLAIMS
1-3    LEGAL BASES FOR TRADE SECRET CLAIMS
1-3:1    Common Law Trade Secret Claims
1-3:2     Uniform Trade Secrets Act
1-3:3     Texas Uniform Trade Secrets Act
1-3:4    Defend Trade Secrets Act of 2016
1-3:4.1    Legislative History
1-3:4.2    DTSA Provisions

Chapter 2: What Is A Trade Secret And Who Owns It?
2-1    INTRODUCTION
2-2    TRADE SECRETS UNDER THE COMMON LAW
2-3    TRADE SECRETS UNDER TUTSA
2-3:1    “Independent Economic Value, Actual or Potential”
2-3:2    “Not Generally Known”
2-3:2.1    “Not Readily Ascertainable by Proper Means”
2-3:2.2    “Reasonable Efforts to Maintain Secrecy”
2-3:3    General Categories of Information Deemed Trade Secrets in Texas
2-3:4    Trade Secret Ownership

Chapter 3: What Is Misappropriation?
3-1    INTRODUCTION
3-2    “MISAPPROPRIATION” OF A TRADE SECRET UNDER THE COMMON LAW
3-3    “MISAPPROPRIATION” OF A TRADE SECRET UNDER TUTSA
3-3:1    “Improper Means”
3-3:1.1    Theft/Bribery/Misrepresentation
3-3:1.2    Breach of Duty/Contract to Maintain Secrecy
3-3:1.3    Espionage Through Electronic or Other Means
3-3:2    Acquired the Trade Secret With Knowledge of Improper Means
3-3:3    Disclosed or Used the Trade Secret Without Consent
3-3:4    Knew About Mistakenly Acquired Trade Secret.

Chapter 4— Planning and Initiating a Trade Secret Lawsuit
4-1    INTRODUCTION
4-2    CEASE-AND-DESIST LETTER
4-3    EVIDENCE PRESERVATION
4-4    EARLY EVIDENCE GATHERING/FORENSIC ANALYSIS
4-5    DRAFTING THE COMPLAINT OR PETITION
4-6    ADDITIONAL CAUSES OF ACTION OFTEN ASSOCIATED WITH TRADE SECRET CLAIMS
4-6:1    Breach of Contract
4-6:2    Breach of Fiduciary Duty
4-6:3    Texas Theft Liability Act
4-6:4    Computer Fraud and Abuse Act
4-6:5    Electronic Communications Privacy Act
4-6:6    Racketeering Influenced and Corrupt Organizations Act
4-7    STATUTE OF LIMITATIONS
4-8    TEMPORARY RESTRAINING ORDERS AND TEMPORARY OR PRELIMINARY INJUNCTIONS
4-8:1    Temporary Restraining Order
4-8:2    Temporary Injunction (State Court)/Preliminary Injunction (Federal Court)

Chapter 5: Discovery in a Trade Secret Lawsuit
5-1    INTRODUCTION
5-2    EARLY EXPEDITED DISCOVERY IN SUPPORT OF TEMPORARY INJUNCTION/PRELIMINARY INJUNCTION
5-3    PRESERVING SECRECY THROUGH PROTECTIVE ORDERS
5-3:1    Non-Disclosure Provision
5-3:2    Attorneys’ Eyes Only Provision
5-3:3    In Camera Hearing Provision
5-3:4    Sealing Provision
5-4    ASSERTING THE TRADE SECRET PRIVILEGE IN NON-TRADE SECRET CASES
5-5    PRE-DISCOVERY IDENTIFICATION OF TRADE SECRETS
5-6    DOCUMENT REQUESTS/INTERROGATORIES
5-7    CHALLENGING THE IDENTIFICATION OF TRADE SECRETS
5-8    REMEDIES FOR FAILURE TO PROPERLY IDENTIFY TRADE SECRETS
5-8:1    Amend Discovery Responses
5-8:2    Strike Trade Secrets
5-8:3    Other Sanctions
5-9    FORENSIC EXAMINATION OF OPPOSING PARTIES’ COMPUTERS

Chapter 6: Responding to the Trade Secret Lawsuit
6-1    INTRODUCTION
6-2    MOTION TO DISMISS THE COMPLAINT/PETITION
6-2:1    Rule 12(b)(6) Motion to Dismiss (Federal Court)
6-2:2    Texas Rule of Civil Procedure 91a Motion to Dismiss (State Court)
6-2:3    Anti-SLAPP Motion to Dismiss (State Court)
6-3    AFFIRMATIVE DEFENSES TO TRADE SECRET CLAIMS
6-3:1    Statute of Limitations
6-3:2    Copyright/Patent Preemption
6-3:3    TUTSA Preemption of Non-Trade Secret Claims
6-3:4    Independent Development or Discovery
6-3:5    The Shop Right Doctrine
6-3:6    Unclean Hands
6-3:7    Laches
6-4    COUNTERCLAINS
6-5    MOTION FOR SUMMARY JUDGMENT

Chapter 7—Expert Witnesses In Trade Secret Cases
7-1    INTRODUCTION
7-2    RELIABILITY OF EXPERT WITNESS TESTIMONY GENERALLY
7-3    CHALLENGING THE EXPERT’S TESTIMONY
7-4    TYPES OF EXPERTS IN TRADE SECRET CASES
7-4:1    Technical Experts
7-4:2    Forensic Computer Experts
7-4:3    Damages Experts
7-4:3.1    Trade Secret Cases Excluding Damages Testimony
7-4:3.2    Trade Secret Cases Allowing Damages Testimony
7-5    EXPERT TESTIMONY ABOUT THE EXISTENCE OF A TRADE SECRET

Chapter 8: Trying a Trade Secrets Case
8-1    INTRODUCTION
8-2    TELLING THE PLAINTIFF’S STORY
8-3    HUMANIZING THE CORPORATE PLAINTIFF
8-4    SIMPLIFYING COMPLEX INFORMATION
8-5    EXCLUDING THE OPPOSING PARTY FROM THE COURTROOM
8-6    JURY INSTRUCTIONS

Chapter 9—Monetary and Equitable Relief
9-1    INTRODUCTION
9-2    MONETARY RELIEF
9-2:1    “Actual Loss” by the Plaintiff
9-2:2    “Unjust Enrichment” by the Defendant
9-2:3    Reasonable Royalty
9-2:4    Apportionment of Damages
9-2:5    Causation
9-2:6    Permanent Injunctive Relief
9-2:6.1    CPRC § 134A.003(b)—Future Payment of Royalty
9-2:6.2    CPRC § 134A.003(c)—Injunction Covering Affirmative Acts
9-3    EXEMPLARY DAMAGES—CPRC § 134A.004(b)
9-4    ATTORNEYS’ FEES—CPRC § 134A.005
9-5    JOINT AND SEVERAL LIABILITY FOR MULTIPLE TRADE SECRET DEFENDANTS
9-6    CONTRIBUTION AMONG TRADE SECRET DEFENDANTS

Chapter 10—Defend Trade Secrets Act of 2016
10-1    INTRODUCTION
10-2    BACKGROUND
10-3    DIFFERENCES FROM TUTSA
10-3:1“Trade Secret”
10-3:2    “Proper Means” and “Improper Means”
10-3:3    Other Definitions
10-4    PRESERVATION OF SECRECY—PROTECTIVE ORDERS
10-5    INJUNCTIVE RELIEF AND CIVIL SEIZURE
10-6    WHISTLEBLOWER PROTECTIONS
10-7    ISSUES RELATED TO LITIGATING IN FEDERAL COURT UNDER THE DTSA
10-8    TIMING
10-9    TEMPORARY RESTRAINING ORDERS
10-10    PRELIMINARY INJUNCTIONS
10-11    MOTIONS TO DISMISS

Sample Documents and Forms

Table of Cases; Table of Statutes; Index

Appendices with full text: Texas Uniform Trade Secrets Act (enacted in 2013) Uniform Trade Secrets Act, and federal Defend Trade Secrets Act (enacted in 2016).
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Trey Cox is with Lynn Pinker Cox & Hurst, LLP, a litigation boutique in Dallas, Texas. His jury trial experience and courtroom success have earned him the distinction of being Board Certified as a Trial Advocate by the National Board of Trial Advocacy. Trey represents Fortune 500 corporations, entrepreneurs and leading firms in a wide array of industries. His dedication to his clients and his winning track record have repeatedly earned him recognition as a top trial lawyer in the country. He serves on the faculty of Southern Methodist University Law School and the National Institute for Trial Advocacy. He has lectured throughout the country, and authored numerous legal articles, white papers, and books, including How to Recover Attorneys' Fees in Texas.  |Trey received a B.A. magna cum laude from Washington & Lee University and his J.D. with honors from the University of Virginia School of Law.
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