UnIntellectual Property (UnIP): Trade Secret for Pricing Information and Marketing Strategy

The United States District Court for the Eastern District of Wisconsin denied a litigant’s attempt to seal information related to its pricing information and marketing strategy.  Although FRCP 26 allows for trade secret or other confidential information not to be revealed and thus sealed from public view.  However, the burden is on the moving party to establish that what is sought to be sealed qualifies.

Plaintiff sought to seal deposition testimony as contained in transcripts and other documents that contained the following, and the Court denied each of the same for the reasons set forth below:

 

1. “pricing, bid and discount information, market analysis, and sales strategy information.”  The Court noted that the deposition testimony did not contain pricing, discounts, or market analysis but rather general discussion about general sales strategy concerning its decision whether to offer a customer a discount.  So it held that the “type of sales strategy contained here is generally known and not of a type that can qualify as a trade secret.”

2. “price quotations related to the sale of a boat hoist to Skipper Bud’s more than two years ago.”  The Court did not agree with Plaintiff that these exhibits  contain its proprietary sales and pricing information, discount, and product specification information because the information could be readily obtained from the purchaser who was not subject to a confidentiality agreement.  So it held that “the price quotations are not based on unique or complicated information, rather it is based on the price of the unit and any additional options the customer selects. Absent some special circumstances, such as a confidentiality provision in a contract prohibiting the customer from disclosing the price, the information is not confidential.”

3. “sales and discount information and lost profit projections.”  The Court did not agree that the disclosures contained any specific projected sales or discount information and only contained a general range of estimated lost profits.   So it held that the “information is not a trade secret and is already contained within the public record. (See Def.’s Br. in Supp. of Mot. to Strike 4, ECF No. 202.) Insofar as the disclosure summaries contain general principles of how Marine Travelift projects sales, this information is well known and does not contain any specific or unique method that could be described as a trade secret. Consequently, these documents will also not be maintained under seal.”

4.”various discounts that MTI provides to its customers depending on a variety of circumstances.”  The Court noted that customers were free to disclose such discounts, so it held that such information was not a trade secret.

 

This case illustrates a core trade secret principle surrounding whether the information was readily ascertainable.  Since it was, there was no trade secret protection afforded and no need to seal it from public view.  Put simply, general information, especially where it is not subject to a written confidentiality agreement, is unlikely to be deemed trade secret and sealed.  Plaintiff’s should know that when they pursue a trade secret misappropriation lawsuit, they will be disclosing certain information in order to prove their case.  While a protective order and sealed records are possible and advisable, typically it will only protect trade secret or other confidential information not generally known or readily ascertainable.

Marine Travelift, Inc. v. Marine Lift Sys., Inc., 10-C-1046, 2013 WL 4087555 (E.D. Wis. Aug. 13, 2013).

 

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