In my December 17, 2016 post, I discussed the In re M-I, LLC balancing test that courts must employ in making the decision to exclude a party’s representive from participating at trial. Recently, I had a conversation with an in-house counsel about this case, and he brought up an interesting point about excluding a party’s representative: If the allegation is that the defendant already has knowledge of the plaintiff’s trade secret, how can the plaintiff be harmed by the defendant’s participation at trial or hearing? (For purposes of this blog, I’ll assume that the excluded representative is the defendant.) Under that scenario, there is little harm to plaintiff if defendant participates at hearing/trial since the defendant already knows the trade secret. Conversely, there’s more harm from defendant participating at trial if defendant has not yet received the trade secret—e.g., defendant is hiring an employee that has the trade secrets.
In my opinion, the in-house counsel brings up a persuasive point. The Court should consider a fifth factor: whether the plaintiff is alleging that the defendant is already in possession of the trade secret. This would be the strongest factor against excluding a representative from trial because there can be no harm to plaintiff because the defendant, by participating in the trial or hearing, would not be hearing any information it does not already know.