In trade secret litigation, parties often fight bitterly over the level of particularity with which the party asserting misappropriation has described its trade secrets. That dispute frequently plays out in connection with interrogatory responses or other trade secret contentions, served after the initial pleadings are closed.
However, it can arise earlier in the case. In a recent order, Judge Andrews dismissed a federal trade secret misappropriation claim under Rule 12(b)(6) because the complaint identified "large, general areas of information that Plaintiff alleges to have shared with Defendant" but failed to "identify what the trade secrets are within those general areas."
Notably, the order, issued in Lithero, LLC v. Astrazeneca Pharms. LP, C.A. No. 19-2320-RGA (D. Del.), states that generally speaking, "trade secrets need not be disclosed in detail in a complaint alleging misappropriation for the simple reason that such a requirement would result in public disclosure of the purported trade secrets."
But in this case, Judge Andrews had permitted the plaintiff to file its complaint under seal. "Despite being filed under seal," however, "Plaintiff's complaint describes the alleged trade secrets in broad terms."
While the complaint alleged that certain information regarding the "training process" and other "design and development aspects" of the automated regulatory assistant at issue ("LARA") was shared with the defendant, Judge Andrews concluded that "without knowing . . . what about LARA's training process is a trade secret, Defendant is not put on sufficient notice of what it is accused of misappropriating."
The notice pleading standard does not change depending on whether a pleading is sealed. Nonetheless, it is noteworthy that the extra protection afforded by sealing can be a double-edged sword for a trade secret plaintiff. And in all cases, carefully describing and supporting trade secrets is critical.