Identifying Trade Secrets

• Author: Veronica J. Lew
• Pages: 8-9

Published in Litigation, Volume 49, Number 4, Summer 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 8

whether to keep the appointed judges.

Arizona voters tweaked the process again

in 1992 with a constitutional amendment

to implement a comprehensive system for

review of judges. A commission of law-

yers, judges, and other citizens appointed

by the Arizona Supreme Court conducts

performance reviews based on survey data

and accountability meetings with indi-

vidual judges. All participants in the pro-

cess—litigants, attorneys, witnesses, ju-

rors, courtroom administrative staff—are

surveyed, providing a wide cross-section

of perspectives on judicial performance.

The commission publishes a report in

preparation for each retention election,

including the results of commission mem-

bers’ votes on whether each judge meets

standards for legal ability, integrity, com-

munication skills, judicial temperament,

and administrative performance.

Prior to the 2022 election, Arizona vot-

ers had removed only three judges in re-

tention elections. Two were removed in

1978, the first year retention was on the

ballot. Over the years, the commission

has given overall thumbs-down recom-

mendations or multiple negative ratings

on specific factors, but those judges still

survived their retention elections.

Something clicked, however, in

Maricopa County in 2022. A majority of

the commission voted against one judge

up for retention, while two other judges

received overall negative ratings from

multiple commissioners. These three then

got the boot from voters.

What may have clicked was the com-

mission’s own publicity campaign, styled

“Finish the Ballot!” The 2022 Maricopa

County bal lot was indeed long. You may

have heard about the technical glitch at

some polling places on Election Day, ulti-

mately attributed in part to the two-sided

ballot being 20 inches long!

The superior court races are at the end

of this endless ballot, and a sizable chunk

of voters never get there. Out of more than

1.5 million votes cast, the undervote for

the superior court races ranged between

about 600,000 and 690,000. Still, that

means nearly two-thirds of voters made

it to the judicial retention races.

The judge with the negative rating from

a majority of commissioners lost by the

largest margin, 63 percent to 37 percent.

He also had the lowest undervote of all

the superior court races on the Maricopa

ballot, meaning some voters chose to mark

their ballots just against retaining him,

while not bothering to vote in any of the

other judicial retention races. The judge

with negative ratings from nine commis-

sioners lost by a 60–40 marg in, while the

judge with two negative ratings lost by a

narrower margin, 52–48.

Based on these results, I’m willing to

find causation, not just correlation. I have

no doubt that Maricopa voters took the

commission ratings into account in 2022.

Maricopa voters have shown that if you

build them a fair and independent system to

inform their vote in judicial retention elec-

tions, they will come to the polls and use it.

The Field of Dreams for voters in judicial re-

tention elections that Justice O’Connor and

her fellow reformers imagined a half-centu-

ry ago is emerging in the Desert Southwest. q

DISCOVERY

Identifying Trade

Secrets

VERONICA J. LEW

The author is an associate at Morgan, Lewis &

Bockius LLP, Houston.

In any case, there is the question of how

much information to disclose and when.

This tension increases exponentially when

a case involves trade secrets. By definition,

trade secrets derive their value from not

being generally known to the public or

readily ascertainable by another person

who can use the information. They also

require their owners to take reasonable

measures to keep them secret.

The proper identification of the trade

secrets at issue in a case is a crucial com-

ponent to the claim. Without precise iden-

tification, the parties can’t differentiate

between pu blicly available information,

information that is obtainable through

proper means, information already known

to persons in the field, and trade secrets.

Given this importance, identification is

often an early source of controversy be-

tween the parties. Still, the Defend Trade

Secrets Act and the Uniform Trade Secrets

Act, versions of which have been adopted

by 49 states and the District of Columbia,

are silent on pre-discovery disclosure

mandates for identifying trade secrets.

The requirements for identifying a

trade secret often depend on the stage

of the case, the venue, and sometimes

even the court. At the pleading stage, a

plaintiff needn’t spell out all the details

but must, as one court put it, “describe

the subject matter of the trade secret

with sufficient particularity to separate

it from matters of general knowledge in

the trade, and to permit the defendant to

ascertain at least the boundaries within

which the secret lies.” Alta Devices, Inc.

v. LG Elecs., Inc., 343 F. Supp. 3d 868, 881

(N.D. Cal. 2018).

Specifically, a plaintiff must describe

the trade secrets at issue sufficien tly to

put a defendant on notice of the informa-

tion that is the subject of the claims. If a

plaintiff seeks temporary or permanent

injunctive relief, the trade secrets must

be described so as to satisfy Rule 65 of

the Federal Rules of Civil Procedure. See

Syntex Ophthalmics, Inc. v. Tsuetaki, 701

F.2d 677, 684 (7th Cir. 1983).

Discovery is where things get tricki-

er. There are key policy reasons for and

against forcing a plaintiff to specify the

trade secrets at iss ue befor e discov ery

starts. In general, a plaintiff’s broad right

to relevant information about the case

should be weighed against a defendant’s

concern that trade secret litigation not

become a fishing expedition into its busi-

ness and technology.