In re M-I

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On September 1, 2017, changes to the Texas Uniform Trade Secret Act (TUTSA) went into effect.  These changes were designed to accomplish two goals: (1) incorporate certain provisions of the new federal Defend Trade Secrets Act (DTSA) to eliminate confusion and avoid possible forum shopping between state and federal courts and (2) codify the Texas Supreme Court’s holding in In re M-I, LLC, which sets forth the factors that a court must analyze in order to prohibit a party from participating in certain portions of a trade secrets case.

The September 2017 issue of the Texas Bar Journal published an article outlining these changes to TUTSA.
Continue Reading Texas Bar Journal Publishes Trade Secrets Article by Brackett & Ellis Attorneys

In my December 17, 2016 post, I discussed the In re M-I, LLC balancing test that courts must employ in making the decision to exclude a party’s representive from participating at trial.  Recently, I had a conversation with an in-house counsel about this case, and he brought up an interesting point about excluding a party’s representative: If the allegation is that the defendant already has knowledge of the plaintiff’s trade secret, how can the plaintiff be harmed by the defendant’s participation at trial or hearing?  (For purposes of this blog, I’ll assume that the excluded representative is the defendant.)  Under that scenario, there is little harm to plaintiff if defendant participates at hearing/trial since the defendant already knows the trade secret.  Conversely, there’s more harm from defendant participating at trial if defendant has not yet received the trade secret—e.g., defendant is hiring an employee that has the trade secrets.
Continue Reading The Problem with In re M-I, LLC

In a misappropriation of trade secrets case under the Texas Uniform Trade Secrets Act (TUTSA), the trial court must “preserve the secrecy of an alleged trade secret by reasonable means.”  TEX. CIV. PRAC. & REM. CODE § 134A.006 (Westlaw 2016).  TUTSA, however, provides only scant guidance for the courts on how to preserve that secrecy.  Under TUTSA,  “[t]here is a presumption in favor of granting protective orders to preserve the secrecy of trade secrets.”  Futher, TUTSA states that these protective orders may include, among other things, “limiting access to confidential information to only the attorneys and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”  Beyond these two sentences, TUTSA is not specific as to what the trial court must do in order to preserve the secrecy of the alleged trade secret.

In re M-I, LLC is the first Texas Supreme Court case to attempt to provide trial courts with more guidance. 
Continue Reading The First Texas Supreme Court Case Interpreting the Texas Uniform Trade Secrets Act