8-2 TELLING THE PLAINTIFF'S STORY

• Jurisdiction: United States

8-2 Telling the Plaintiff's Story

A common fact pattern in trade secret cases involves an executive (or team of executives) who leave the plaintiff either to work for a competitor or to start their own competing enterprise. If, prior to leaving, those employees had significant control over the company's operations—such as with a CEO or COO—the plaintiff might lack a credible fact witness who knows enough about the internal workings of the company to establish the existence of a trade secret. Moreover, in this context, the departing officer may also be able to credibly rebut the plaintiff's claims about secrecy from the perspective of a company "insider," thus putting the plaintiff at an even greater disadvantage.

In such a scenario, the plaintiff has few good options for choosing a witness to tell its story to the jury. One possibility might be to educate a current employee as a corporate representative to testify about the company's protection of the alleged trade secrets. Of course, this witness would have to be able to talk about the measures in place at the time of the misappropriation, which could have been before the employee joined the company. This approach is often not ideal because it can open the witness up to cross examination on his or her lack of knowledge. It is also often difficult to fully educate a witness who does not have personal...