Coronavirus-related emergency measures may limit litigants’ ability to protect trade secrets in state court. State courts are drastically altering their operations in response to the novel coronavirus pandemic, including closing courthouses, continuing trials and other deadlines, suspending rules requiring paper filings, and encouraging, if not requiring, telephone and videoconferencing.

New York State, which as of the publishing of this piece was the state with the highest number of confirmed cases in the United States, has imposed some especially restrictive measures for litigants in state court. New York’s Chief Administrative Law Judge, has restricted all non-essential filings (and has also postponed all “nonessential” services). New York courts are only accepting filings pertaining to emergency matters, which the Administrative Order defines to include criminal matters; family court; certain Supreme Court matters including guardianship matters, emergency election law applications, and extreme risk protection orders; and civil housing matters, including landlord lockouts, serious code violations, serious repair orders, and applications for post-eviction relief. The Order is available here. Filings in most civil suits are, accordingly, restricted.

This Order has particularly serious implications for trade secrets litigants looking to file in New York state court. Any action, including those seeking a temporary restraining order or preliminary injunctive relief, must be brought in federal court or, if possible, in a different state. Trade secrets litigants, in the absence of diversity jurisdiction, should consider seriously the merits of their case under the Defend Trade Secrets Act or other applicable federal statutes in order to invoke federal question jurisdiction.

For an overview of state court orders regarding the coronavirus, please click here.