Wednesday, July 22, 2015

Trade secrets and FOIA

From Dunlap Codding:

A trade secret plaintiff clearly needs to establish both elements, but I’d like to discuss the second element, i.e., reasonable efforts to maintain secrecy. Specifically, I’d like to focus on this element in the context of defending one’s trade secret from disclosure through a Freedom of Information Act Request (“FOIA”) or Open Records Request (“ORR”).

A hypothetical may help highlight one particular inequity that can arise at the junction of trade secrets and FOIA/ORR. Imagine that your company is required to submit an application or documentation to a state or federal agency in order to conduct business, obtain certification, or gain approval to contract with the agency. Examples include a defense contractor submitting information to the Department of Defense, a pharmaceutical company submitting test or trial results to the FDA, or an oil and gas company submitting information to a local governing body, such as the Oklahoma Corporation Commission, in order to conduct business. The information or documentation at issue may be protected by a patent, trademark, or copyright, but often, the submitted information may contain trade secrets.



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