| Time | Session | Panelists |
| | Sunday, September 10, 2023 | |
| 6:00 — 8:00 p.m. | Evening Welcome Reception | |
| | Monday, September 11, 2023 | |
| 7:30 — 8:45 a.m. | Breakfast & Registration | |
| 8:45 — 9:00 a.m. | Welcome & Introductions | Almeling, Cundiff, Weinlein |
| 9:00 — 10:15 a.m. | Panel 1 - Draft Commentary Review: Sharing Trade Secrets With Other Organizations | Braun, Fine, Harezlak, Hon. Freeman, Hayes*, Pelletier*, Saeedi |
| | Today's dynamic business environment creates opportunties for businesses to share their trade secrets with suppliers or in connection with potential business transactions. Such sharing can create synergy and value, but also risks unauthorized disclosure and even misappropriation. In this panel, the dialogue leaders will explore the topics of protecting trade secrets with contractual, physical and technological tools before, when and after they are shared, from the disclosing party's perspective and the receiving party's perspective. This discussion will identify potential issues when sharing trade secrets and will suggest pragmatic available solutions in light of marketplace realities. | |
| 10:15 — 10:45 a.m. | Morning Break | |
| 10:45 — 12:00 p.m. | Panel 2 - Draft Commentary Review: The Use of Clean Rooms to Minimize Risk and Protect Innovations | Elman, Gray, Linderman*, McPherson |
| | The term “clean room” is frequently used in trade secret disputes but with different meanings, needs and approaches. In the context of trade secrets law, the basic goal of any “clean room” is to ensure that development of new products/processes is not “tainted” by unauthorized use of another’s trade secrets. But how to implement that basic goal may vary depending on context: has information already been shared by a trade secret owner with a receiving party, or is the information sharing relationship under development? Is the immediate issue limited to staffing the team that will evaluate a potential business transaction, for example, or is an organization contemplating ways to design a competing product once a collaborative business relationship has untangled? Has some independent development already occurred? Is litigation possible, imminent, or already underway? Designing and implementing a clean room can be critical to minimizing risk and protecting innovations. Using a clean room can be an effective tool to avoid or defend against intellectual property infringement or misappropriation claims. Assessment of clean room protocols can test or rebut a defendant’s independent development or reverse engineering claim in trade secret litigation. This discussion will help (1) provide a foundation for practitioners to understand what a clean room is, why one would be used, and when one should be used; and (2) identify key provisions for consideration in developing a clean room protocol. | |
| 12:00 — 1:15 p.m. | Lunch | |
| 1:15 — 2:30 p.m. | Panel 3 - Model Jury Instructions Under the Defend Trade Secrets Act | Candido*, D'Amore, Galli*, Gerber*, Hon. Pallmeyer, Wiseman |
| | This Project Team has prepared an outline of topics for jury instructions under the Defend Trade Secrets Act. Such topics include the definition of a trade secret, misappropriation via acquisition, disclosure or use, the nature of the injury or harm required, remedies available for misappropriation and affirmative defenses. This drafting team has collected and will continue to pursue exemplary jury instructions to assist practitioners and the courts in framing the issues to juries via clear and effective instructions. | |
| 2:30 — 3:00 p.m. | Afternoon Break | |
|
| 3:00 — 4:00 p.m. | Panel 4 - State of WG12: Where We've Been, Where We Are Going and Sedona's Impact On The Profession | Almeling*, Cundiff* |
| | - Sedona WG12 Commentaries to date (see abbreviated summary in program materials)
- Discussion of Sedona Commentaries in Courts and in Practice
- Potential New Commentaries for Consideration
| |
| 4:00 — 5:15 p.m. | Panel 5 - Voices from the Bench: Judicial Perspectives for 2023 and Beyond | Hon. Bowbeer (ret.), Cundiff*, Hon. Freeman, Hon. Miller, Hon. Pallmeyer |
| | This panel comprised of judges with varied Federal and State Court experience will provide thoughts on issues germaine to the trade secrets field. | |
| 5:30 — 7:30 p.m. | Reception (guests invited) | |
| | | |
| | Tuesday, September 12, 2023 | |
| 7:30 — 8:30 a.m. | Breakfast & Registration | |
| 8:30 — 9:30 a.m. | Panel 6 - Protecting Trade Secrets Through Use of Confidentiality Agreements | Beck*, Hon. Bowbeer (ret.), Hines, Hrdy, Morton*, Pooley, Skoff |
| | This panel will explore several important issues. What can be protected under a confidentiality agreement? Should confidential information be treated differently depending on the context? Are there limits on enforcing confidentiality agreements? What are the key issues pertaining to the secrecy of a trade secret? The dialogue leaders will discuss and elicit membership feedback on the status, outstanding issues, and direction of this draft commentary. | |
| 9:30 — 10:45 a.m. | Panel 7 - Draft Commentary Review: Forensic Issues in Trade Secret Disputes | Davis, Gerber*, Meier, Obaro, Vaughn* |
| | Computer forensic review is a mainstay of trade secret litigation. But what review is necessary, appropriate, proportional, or essential and when and how do the answers vary depending on the nature of the particular dispute? Members from the practitioner and forensic expert realms will start our collaborative discussion on pre-litigation forensic investigations, forensics in expedited discovery proceedings, the roles of court-appointed/independent forensic neutrals, initial disclosures and discovery of forensics, and forensic remediation as a remedy. | |
| 10:45 — 11:00 a.m. | Morning Break | |
| 11:00 — 12:00 p.m. | Panel 8 - Willfulness Damages and Attorney Fees | Mintz, Morgan, Polenberg, Prewitt, Weibust*, Wilson |
| | Attorney’s fees are increasingly being sought and awarded in trade secret cases to litigants on both sides of the “v.” But they are not automatic. Similarly, while trade secret statutes permit the award of exemplary damages in cases of “willful” or “malicious” misappropriation, they do not necessarily follow a finding of willfulness. What criteria do and should courts use for making such awards and how should the availability of such awards shape trade secret litigation? This panel of experienced practitioners will address these issues and will use the meeting dialogue to inform their thinking as they build out their Commentary on this important topic. | |
| 12:00 — 12:15 p.m. | Break | |
| 12:15 — 1:15 p.m. | Panel 9 - In-House Perspectives | Almeling*, Braun, Harts, McBride, Miller |
| | Trade secret counseling often involves a prescription of recommendations clients and their in-house counsel should follow to best protect company assets. While implementation of these ideas may well provide optimal protection for the enterprise, they may not always be practical, palatable or cost-effective. And advice on educating your workforce how to identify trade secrets and then how best to protect them can be complicated, often necessitating compromises regarding what is realistic in light of corporate resources and commitment. This expert panel of dialogue leaders with substantial in-house experience offer their thoughts on how our Sedona trade secrets Commentaries can better reflect the perspectives and realities of today's in-house practice. | |
| 1:15— 1:30 p.m. | Closing Statements | Weinlein |
| 1:30 — 2:00 p.m. | Grab-&-Go Lunch (provided) | |
