On October 2, 2020, a federal judge for the Central District of California denied a motion for a temporary restraining order (“TRO”) to enjoin the Discovery Channel from airing “The Lost Lincoln,” a documentary about an allegedly long-lost photograph of Abraham Lincoln on his deathbed.  Only 130 photographs of Lincoln are known to exist.

Plaintiffs Jerry Spolar and Terry Williamson own the photograph, known as an ambrotype, and spent years researching and authenticating it.  In 2018, they partnered with Whitny and James Braun to make a documentary about the photo and shared the details of their authentication efforts with the Brauns pursuant to non-disclosure agreements.  The project fell through at first, but late last month, Plaintiffs learned that their former partners had created a documentary about the photograph for the Discovery Channel.

Plaintiffs brought suit asserting trade secret misappropriation under the federal Defend Trade Secrets Act (“DTSA”), breach of contract, and breach of California’s Unfair Competition Law, arguing that the documentary would disclose their confidential and trade secret research and authentication methods.  Specifically, Plaintiffs claimed the following as their trade secrets:

“the compilation of a confidential list of dozens of medical, forensic, and authentication experts; detailed reports, analyses, and conclusions; scientific analytical drawings; annotated images and overlays of the Lincoln Ambrotype and features thereon; experimental procedures and results; related expert and consultant write-ups; handwritten notes, annotated figures and images, and detailed notes of Plaintiffs’ interactions with their team of collaborators; and various duplication methods used to create images of the Lincoln Ambrotype to enable more detailed photogrammetric analyses.”

To be sure, the DTSA broadly defines what can be a trade secret.  Any type of “financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes” can qualify as trade secret if it derives independent economic value from not being generally known or readily ascertainable and if the owner takes reasonable steps to maintain the information’s secrecy.

But Plaintiffs, it turns out, went too far in broadly claiming these catch-all trade secrets.  The court held that these descriptions did not identify their claimed trade secrets with “sufficient particularity” and that, as a practical matter, the court would be unable to separate the claimed trade secrets from public information.  Moreover, the court explained that these deficiencies raised even greater concerns because the Plaintiffs’ request to restrain the Discovery Channel from broadcasting the documentary implicated the First Amendment’s “prior restraint” doctrine, which favors an eventual merits resolution over prospectively enjoining speech.

This case is an unusual but familiar reminder that trade secret plaintiffs must carefully describe their trade secrets so that the court can readily differentiate trade secret information from publicly available information.