The Novel Remedy of Ex Parte Civil Seizure under the Defend Trade Secrets Act

Under the Defend Trade Secrets Act2 (DTSA), effective as of May 2016, a broad federal scheme for the protection of trade secrets allows an aggrieved party, without notice to the other side, to seek an order in US District Court for Federal Marshals to seize storage devices or other property if "...

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Bibliographic Details
Published in:Computer and Internet Lawyer 2018-05, Vol.35 (5), p.19-21
Main Authors: Wilson, William M., III, Lightsey, Wallace K, Layne, Stephen R
Format: Article
Language:English
Subjects:
Civil procedure
Confidentiality
Court decisions
Federal legislation
Federal Rules of Civil Procedure
Interstate commerce
Law enforcement
Laws, regulations and rules
Misappropriation of funds
Personal information
Remedies
Searches and seizures
State court decisions
Trade secrets
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Summary:Under the Defend Trade Secrets Act2 (DTSA), effective as of May 2016, a broad federal scheme for the protection of trade secrets allows an aggrieved party, without notice to the other side, to seek an order in US District Court for Federal Marshals to seize storage devices or other property if "necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action. [...]the DTSA contains numerous provisions in order to ensure that a civil seizure order only issues under "extraordinary circumstances. "4 Some of these protections include that the plaintiff must present specific facts (by affidavit or verified complaint) demonstrating that: a standard order for equitable relief under Rule 65 of the Federal Rules of Civil Procedure would be inadequate because the defendant "would evade, avoid, or otherwise not comply with such an order"; an immediate and irreparable injury will occur if seizure is not ordered; the harm to plaintiff for denial of the seizure outweighs the harm to the defendant and substantially outweighs the harm to third parties if the order were granted; there is a likelihood of success on the merits; the defendant has possession of the trade secret; the property to be seized is described with reasonable particularity; the defendant would otherwise destroy, move, hide, or make such property inaccessible to the court if put on notice; and the plaintiff has not publicized the requested seizure.5 These factors often are naturally present when there is persuasive evidence demonstrating that valuable trade secrets have been misappropriated, but there likely would need to be some type of deceit or other bad conduct involved to demonstrate a likelihood that the defendant would not comply with standard injunctive relief. In late 2017, a court granted an ex parte seizure of the defendants' electronic devices and Dropbox account in Blue Star Land Servs., LLC v. Coleman.13 Although the court's order does not contain specific reasoning as to why the seizure was granted, it noted that it "found extraordinary circumstances justifying an ex parte seizure and that it clearly appears from specific facts that [the plaintiff] satisfied the DTSA's eight ex parte seizure order requirements.
ISSN:1531-4944