Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?

Abstract

Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade-secret owners of filing complaints for the purpose of running a competitor out of business, or restraining individuals from discussing matters which are unfavorable to the company. This paper enters the discussion to critically assess whether there is reason to consider restricting these suits or changing the law.

The Article concludes that trade secret litigation on the whole does not inappropriately impinge on free speech rights. The fundamental nature of trade secret rights, in particular the underlying proprietary and corporate privacy interests, has implications for how courts and plaintiff trade-secret holders view, interpret, and approach these cases, and ultimately help illustrate why the free speech issues do not pose an overriding concern sufficient to justify restrictions on trade secret litigation. Even if certain cases sometimes come closer to offending defendants' free speech rights, these occasions and concerns are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil cases, and the other areas of intellectual property litigation suffer from similar problems. Accordingly, any necessary modifications are best addressed in the context of general litigation reform, rather than singling out trade secret cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, should minimize the risk of free speech incursions.