5-3 PRESERVING SECRECY THROUGH PROTECTIVE ORDERS

• Jurisdiction: United States

5-3 Preserving Secrecy Through Protective Orders

One issue that repeatedly arises in trade secret cases is the practical concern for preserving the secrecy of trade secrets during the litigation process. TUTSA specifically addressed this recurring concern by requiring trial courts to "take reasonable measures to protect trade secrets and creates a presumption in favor of granting protective orders to preserve the secrecy of trade secrets."⁷ TUTSA reads as follows:

[A] court shall preserve the secrecy of an alleged trade secret by reasonable means. There is a presumption in favor of granting protective orders to preserve the secrecy of trade secrets. Protective orders may include provisions limiting access to confidential information to only the attorney and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.⁸

This provision was a key factor in TUTSA's passage because it "would ensure that the protection afforded to business was not only clear but strong"⁹ and gave parties "reasonable assurances of maintenance of secrecy" because otherwise "meritorious trade secret litigation would be chilled."¹⁰

Beyond TUTSA's express presumption in favor of protective orders, Texas Rule of Civil Procedure 192.6 allows courts to issue and approve protective orders to shield discovery from public disclosure.¹¹ Rule 26(c) of the Federal Rules of Civil Procedure is the federal analogue and permits courts to issue a protective order upon a showing of "good cause." Whether in state or federal court, both sides in a trade secret case typically want to avoid the public disclosure of their confidential and trade secret information. This means that the parties almost always negotiate agreed protective orders, which are then submitted to the court for approval. However, even if the parties submit an agreed protective order, it is important to note that certain judges have specific requirements with respect to the contents of those orders, so it is necessary for the parties to consult the judge's individual practices.¹²

Examples of provisions that often end up in agreed protective orders in trade secret cases include the following.

5-3:1 Non-Disclosure Provision

A non-disclosure provision of the protective order prevents the people given access to the trade secret from disclosing that information to other people.¹³

5-3:2 Attorneys' Eyes Only Provision

An "attorneys' eyes only" provision limits disclosure of information to the outside attorneys and experts. Under these provisions, typically the clients themselves cannot see the opposing...