Using Surveys in Trade Secret Litigation: A Powerful Tool for Proving Your Case
In trade secret litigation, parties often face the challenge of proving whether certain information qualifies as a trade secret and whether its alleged misappropriation has caused harm. One powerful tool that litigators can use to support their claims or defenses is survey evidence. Well-constructed surveys can provide empirical data that help courts and juries understand key issues, from the economic value of a trade secret to its secrecy within an industry.
How Surveys Can Be Used in Trade Secret Cases
Surveys can play a crucial role in trade secret litigation by providing objective evidence on issues such as:
- Secrecy and Availability in the Industry
o One of the core elements of a trade secret is that it is not generally known or readily ascertainable. Surveys can assess whether industry professionals are aware of or can easily obtain the information at issue.
- Competitive Advantage and Value
o To qualify as a trade secret, the information must provide a competitive edge. Surveys can measure how industry participants perceive the value of the information and whether its possession confers a tangible business advantage.
- Misappropriation and Market Impact
o When trade secrets are allegedly misappropriated, surveys can help establish whether the use of the information has influenced customer decisions or harmed the plaintiff’s market position.
- Reasonable Efforts to Maintain Secrecy
o Courts consider whether the owner took reasonable steps to protect its trade secret. Surveys of employees, vendors, or partners can provide insights into the effectiveness of confidentiality measures.
Best Practices for Conducting Surveys in Litigation
For surveys to be admissible and persuasive, they must be designed and executed properly. Here are some best practices:
- Use a Qualified Expert
o Courts scrutinize survey methodology closely. Engaging an experienced survey expert familiar with litigation standards is essential.
- Design a Methodologically Sound Survey
o The survey should include a representative sample of industry professionals and be structured to avoid bias. Proper question framing is crucial to ensure reliable results.
- Ensure Statistical Reliability
o Courts favor surveys with appropriate sample sizes and rigorous data analysis. Statistical significance should be established to support the survey’s conclusions.
- Follow Legal Precedents
o Surveys should align with past cases where courts have accepted survey evidence in trade secret disputes.
- Document and Validate Findings
o Detailed reports, expert testimony, and validation of the data collection process enhance credibility.
Challenges and Considerations
While surveys can be a powerful tool, they are not without challenges:
- Admissibility Issues:Courts may exclude surveys if they find flaws in methodology, sampling, or question design.
- Cost and Time:Conducting a high-quality survey can be expensive and time-consuming, requiring careful planning.
- Cross-Examination Risks:Opposing counsel may challenge the validity of the survey, requiring experts to defend their work effectively.
Conclusion
Surveys are increasingly recognized as a valuable tool in trade secret litigation. By providing empirical data on key issues such as secrecy, value, and market impact, surveys can strengthen arguments and help courts make informed decisions. When used correctly and supported by expert testimony, surveys can be a decisive factor in proving or defending against trade secret claims.
For businesses and litigators involved in trade secret disputes, considering the use of surveys early in the case strategy can provide a critical advantage. If you’re navigating a trade secret matter, consulting with an experienced intellectual property attorney and a reputable survey expert can help ensure the most effective use of this powerful evidentiary tool.