Under the Defend Trade Secrets Acts (DTSA), 18 U.S.C. §1836 et seq., a “trade secret” is any type of “financial, business, scientific, technical, economic, or engineering information” that “derives independent economic value … from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.”
The Democratic National Committee (“DNC”) filed a lawsuit against Russia, Wikileaks, the Trump Campaign, and several individuals (including Julian Assange, Jared Kushner, and a hacker named “Guccifer 2.0”) on April 20, 2018 in Federal District Court for the Southern District of New York. The DNC alleges that Russia, Guccifer 2.0, Wikileaks, and Assange violated the DTSA, and that all of the defendants violated the Washington D.C. Uniform Trade Secrets Act, D.C. Code Ann. §§ 36-401-46-410. The complaint defines the stolen secrets as “confidential proprietary documents related to campaigns, fundraising, and campaign strategy.” Specific documents include: (1) a DNC-authored opposition research report on Donald Trump from December 2015; (2) DNC strategy documents related to the DNC’s “counter-convention” to the RNC convention; (3) personal information-including social security and passport numbers-of individuals who communicated with or donated to the DNC; and (4) Clinton campaign chairman John Podesta’s hacked emails.
Courts have rarely analyzed the meaning of trade secrets in the political context. There are three key factors that will determine the viability of the claim: (1) whether the documents identified by DNC, as stolen trade secrets, have any independent economic value, (2) whether the information in the documents was not generally known or readily ascertainable through proper measures, and (3) whether the courts will hold DNC to a higher standard than the “reasonable” standard used in analyzing whether the trade secret holder adequately protected its confidential information.
An article mentioned that “[g]iven the domestic and geopolitical stakes, there is no doubt that this will be a fact-intensive and highly contested lawsuit.” Stay tuned.