How “Secret” is Secret for a Trade Secret?

Top SecretReasonable Efforts to Maintain Secrecy is a Question of Fact
Whether reasonable secrecy efforts were made is a question of fact. (San Jose Const., Inc., 155 Cal.App.4th at 1543 (“[W]hether SJC made adequate attempts to keep its prospective project information secret is for the jury to measure.”); In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 306 (“[W]hether a party claiming a trade secret undertook reasonable efforts to maintain secrecy is a question of fact….”); Mattel, Inc. v. MGA Entertainment, Inc., 782 F.Supp.2d 911, 960 (C.D. Cal. Jan. 5, 2001) (“The determination of whether information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy is fact specific.”). Here, for example, is the office or location in question; is office is “off limits;” do the computers have a password; is access restricted to certain people; are there non-disclosure or confidentiality agreements, even oral ones, in place? Importantly, secrecy efforts need only be reasonable under the particular circumstances involving a specific party, industry and situation. (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881(“The secrecy requirement is generally treated as a relative concept and requires a fact intensive analysis.”); see generally CACI No. 4404.) Here, the trade secret plaintiff may not be in the aerospace industry or computer software engineering firm. In this case, we may be talking about small, mom and pop operations. In such a circumstance, whether the security which was implemented by the trade secret Plaintiff was reasonable is a question of fact for the jury.

Eric Papp, Esq.