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ARTICLE · 14 MAY 2020

A Cautionary Trade Secrets Tale: Failure To Preserve Potentially Relevant Evidence

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Here, we provide a cautionary tale of what can happen to a business that fails to preserve documents that are potentially relevant evidence to pending or threatened trade secrets litigation, and offer some...

United StatesIntellectual Property
Rebecca Edelson
Rebecca Edelson
Angela Reid
Angela Reid
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Here, we provide a cautionary tale of what can happen to a business that fails to preserve documents that are potentially relevant evidence to pending or threatened trade secrets litigation, and offer some takeaways for businesses that would like to avoid such dire straits.1

The consequences for spoliation of potentially relevant evidence can range from monetary sanctions, to the exclusion of evidence at trial, adverse jury instructions, and even terminating sanctions.2 Spoliation claims are frequently made in trade secret cases.3 WeRide Corp. v. Kun Huang, No. 5:18-CV-07233-EJD, 2020 WL 1967209 (N.D. Cal. Apr. 24, 2020) is the latest example, and serves as a warning to potential litigants of how severe the consequences of spoliation can be. There, the court ordered the defendants' default be entered as a sanction for their spoliation of potential evidence both after and before the litigation was filed. The spoliation included not only affirmative destruction of

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