Regulatory: A Lone Pine order for trade secrets litigation?
For the defendant, the best strategy may be to lull the plaintiff into a false sense of confidence until it is too late for the plaintiff to correct its mistakes.
September 11, 2013 at 06:00 AM
3 minute read
The original version of this story was published on Law.com
The Lone Pine order is now a well-established aspect of mass tort and product liability litigation. First issued in a 1986 New Jersey state court case, Lore v. Lone Pine Corporation, the court's case management order in that case required plaintiffs to provide expert reports supporting a causal link between the alleged injuries and defendant's landfill, and plaintiffs' failure to come forward with such evidence resulted in dismissal of their claims. The Lone Pine order acts a gatekeeper to eliminate baseless claims at an early stage of the litigation by demanding evidence on a threshold scientific question.
At first blush, the Lone Pine approach may seem readily adaptable to trade secrets litigation. Instead of requiring plaintiff to produce an expert affidavit, a gatekeeping order might instead require detailed disclosures of plaintiff's alleged trade secrets sufficient to demonstrate a reasonable basis for claiming trade secret protection. There is a body of precedent supporting such orders as appropriate case management tools, especially in cases where the plaintiff's initial pleading offers only vague allegations regarding the existence of the trade secrets.
Although a defendant may be able to persuade the court to require more detailed disclosures from the plaintiff at an early stage of the litigation, it is doubtful whether imposing this additional burden on the plaintiff would actually provide a sufficient basis for dismissal of the plaintiff's complaint in most trade secrets suits. Certainly, a plaintiff who simply refused to comply or who provided a patently inadequate disclosure might face dismissal. It is more likely, however, that even a plaintiff with only the thinnest possible basis for alleging the existence of a trade secret could cobble together a sufficient disclosure to avoid summary dismissal of its claim.
A second hurdle is that trade secrets claims are typically pleaded in conjunction with other contract and tort claims, such as breach of a nondisclosure agreement, breach of an employee's duty of loyalty, or unfair competition. The scope of discovery and triable issues for these claims may be substantially the same as for the trade secrets claim. In other words, a gatekeeping test for the trade secrets claim might succeed only in eliminating a legal theory without materially impacting case management.
Unless the defendant is confident that demanding early, detailed disclosures of plaintiff's trade secrets will create an insurmountable hurdle and dismissal of plaintiff's case, the defendant should consider carefully whether even to pursue this strategy. Compelling the plaintiff to present detailed disclosures forces the plaintiff to analyze its claim and carefully develop its case theory. There may be cases where the defendant is better served by exploiting the plaintiff's lack of preparation and patiently waiting for the plaintiff's case to fall apart during depositions or after the close of discovery. Winning a trade secrets case as a plaintiff requires careful planning and a well-developed case theory. For the defendant, the best strategy may be to lull the plaintiff into a false sense of confidence in their own case theory until it is too late for the plaintiff to correct its mistakes.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllCoinbase Hit With Antitrust Suit That Seeks to Change How Crypto Exchanges Operate
3 minute readBaker Botts' Biopharma Client Sues Former In-House Attorney, Others Alleging Extortion Scheme
Trending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250