The Sedona Conference, Working Group 12 on Trade Secrets, has issued guidance on protecting trade secrets in litigation about them. This important Commentary recommends courts:
- Balance the risk of disclosure and harm to the producing party with the need for the other party and to have the information to prepare its case when determining a party’s access to trade secrets;
- Consider the public’s qualified right of access to documents filed with a court, but exercise discretion to deny public access in compelling circumstances; and
- Determine whether a party has credibly identified the existence of a trade secret before ordering appropriate protections.
Sedona Conference materials are often relied upon by courts. Trade secret litigants need to be aware of the risks that their trade secrets could be disclosed in litigation and of the legal framework to persuade courts to order appropriate protections. Thus, this Commentary is required reading for trade secret holders.