The activity that would make a complete stranger liable for trade secret misappropriation would have to be much worse—perhaps even outright theft—to create liability for a third party. Whatever the reason, not asking for immediate relief may make a judge think that UPS has not been severely harmed. But damages here—especially large damages—may be even harder to prove. How specific was the direction to keep this PowerPoint, versus general presentations, secret? Making factual statements at the beginning of a trade secrets case—where the facts often change—can haunt a party later on. Finally, beyond having to satisfy the court about its own practices, UPS faces an additional hurdle because it is a public company. Yet an ongoing internal investigation may mean creating evidence during an ongoing lawsuit—always tricky to manage. Second, personal jurisdiction might be an issue. This case has already received local news coverage.
Public companies have many public reporting requirements and must keep shareholders generally informed about their plans. All that said, more facts will come out, and claims or allegations will get more precise. To show the court that the presentation was a trade secret, UPS will have to answer many questions, both about its general information practices and, specifically, how it treated this presentation. Could an intrepid reporter have backed into the information in the PowerPoint by researching earnings calls, public statements, trade journals, or industry gossip? Making factual statements at the beginning of a trade secrets case—where the facts often change—can haunt a party later on. The activity that would make a complete stranger liable for trade secret misappropriation would have to be much worse—perhaps even outright theft—to create liability for a third party. Indeed, UPS has sought immediate discovery in the case. Are the defendants potential competitors? Showing value of the presentation and reasonable steps to protect a presentation will be hard. Who was in the audience? Anyone outside of company? Right now, the defendants may or may not be employees. Perhaps unlike many presentations, does the PowerPoint have information specific enough to be valuable? Granted, UPS has acted quite quickly—having apparently only found out about the leak a few weeks ago. For example, breach of duty claims seem likely against any of the defendants that are UPS employees. These are all hard questions that UPS may need to answer. Were there password or physical access limitations to the PowerPoint? Was there anyone in the audience that had no reason to know what was in the PowerPoint? Finally, beyond having to satisfy the court about its own practices, UPS faces an additional hurdle because it is a public company. An ongoing investigation may also be the reason UPS has not submitted anything under oath yet. But damages here—especially large damages—may be even harder to prove. Did the attendees to the presentation sign non-disclosure or confidentiality agreements? Or only some might be. Instead of or in addition to damages, most trade secret plaintiffs ask for injunctive relief such as a temporary restraining order or a preliminary injunction immediately. If some of the defendants only accessed the presentation on the internet, they might lack the necessary connection to Georgia needed for UPS to sue them in Georgia.
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