2020 saw a marked uptick in unfair import investigations at the International Trade Commission (ITC), with an especially strong close to the year: eight new complaints in December alone brought the year’s total to 62 new complaints to the Commission, well above the ten-year average of 49. Complaints alleging trade secret misappropriation rose particularly, as the ITC becomes increasingly popular due to its speed, jurisdiction and unique remedies. While just five investigations solely of trade secrets were instituted in the five years of 2011-2015, fifteen such investigations were instituted in the next five years of 2016-2020, including five in 2020 alone.[1]
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Trade Secret Litigation Strategies: Tools for Managing Costs
It’s no secret that trade secret litigation can be expensive. Whether you are bringing a lawsuit to protect your crown jewels or defending against alleged trade secret misappropriation, we offer some useful strategies for managing and mitigating costs in trade secret litigation:
- Get Ready, Go! Identifying trade secret misappropriation is only the beginning of the story. Well before filing a trade secret lawsuit, plaintiffs must work to locate relevant documents, interview witnesses with knowledge, identify the trade secrets at issue, and explore strategic considerations including the appropriate venue, the applicable law, and legal claims including related breach of contract and common law claims. Defending against a trade secret case requires getting up to speed quickly, identifying key defenses, and often rapidly preparing oppositions to requests for injunctive relief or expedited discovery.
- Budget Wisely. Trade secret litigation can move quickly from complaint to emergency injunctive relief or stretch on for years when mired in contentious discovery disputes or debates over the nature and contour of often technical or complex trade secrets. Budgeting clearly from the start ensures that litigation goals are met and cost expectations are understood. Proposed budgets should include breakdowns of (1) staffing, including level, location, years of experience, expected work, hourly rate, and projected hours for each team member; (2) forecasting fees and costs at each phase and expected milestone throughout the life of a trade secrets litigation, (3) regular interim updates in addition to year-to-date or matter-to-date costs and fees, and (4) assumptions or limitations built into the budget. Electronic task management systems can collect data on billing unique to each phase of the litigation or milestones such as resolution of initial injunctive relief or preparing trade secret identification to stay on track with budgeted goals. Planning for unexpected budget excesses, which may occur due to early disputes over trade secret identification or early expedited discovery, help manage expectations and avoid rejection of invoices. We provide tips for creating and maintaining a budget in Crowell’s Legal Project Management Guidebook.
- Don’t Lose Sight of Discovery Costs. Discovery can be the single most expensive phase of any litigation so keeping a close eye on these costs can lead to big savings.
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