Trade Secrets at the ITC

Directors Uma Everett and Paul Ainsworth presented the “Trade Secrets at the ITC” webinar on November 15, 2023. The presenters gave an overview of the strategic considerations relating to enforcing trade secret misappropriation claims at the ITC. While historically, trade secret cases comprise only about 2% of all investigations at the ITC, there has been increasing attention to the ITC as a forum for trade secret enforcement. Trade secret enforcement at the ITC in recent years has implicated a wide range of industries, including heavy machinery, biotechnology, medical devices, and electronics. It also has involved commercial information trade secrets in addition to technology-based trade secrets.

The discussion focused on certain advantages of the ITC as a forum for trade secret cases. Some key takeaways include:

1. Discovery at the ITC is broad and permissive. In federal district court, discovery battles can rage on for months. At the ITC, however, parties are able to quickly obtain discovery and the scope of permissible discovery is broad. For example, a complainant may seek forensic analysis of a respondents’ email and computer networks to show how its trade secret information was used by a respondent. While obtaining such discovery in district court is possible, it may take months of wrangling to do so. At the ITC, such discovery can be obtained in a matter of weeks.
2. The ITC’s procedural schedule is fast. A typical procedural schedule results in a final Commission decision within 14-16 months after institution. This is twice as fast as a typical district court case. The one disadvantage of the ITC is that obtaining preliminary injunctive relief is possible, but more difficult than district court. If preliminary injunctive relief is necessary and the parties are located in the United States, then filing a district court case first may be preferable.
3. ITC proceedings have heightened confidentiality protections compared to district court. In district courts, you will ultimately be putting information out in a public forum that you may not want to share. While district court proceedings often have protective orders to keep information confidential during discovery, it is much more difficult to file documents under seal or to close a courtroom for a hearing. In contrast, the ITC handles confidentiality issues in a manner more favorable for protecting parties’ confidential information including during discovery and at any hearings.

This webinar was the fourth in our five-part series, Navigating the Intricacies of 337 Litigation at the International Trade Commission. The final session in this series will be an ITC Year in Review and will occur in early February.

Note: CLE is not available for On Demand viewing.