Rule 5 Quiz: Rate The Risk of Revealing a Company’s Purported Trade Secret
Click on each item for an explanation of legal risk.
You’re blogging on the use of child labor in the chocolate trade. You get hold of a list of chocolate manufacturers who purchase cocoa from a supplier that is being investigated for having ties to some of the world’s most exploitative cocoa plantations. You wish to publish the list on your blog to inform the public of the nefarious origins of the chocolate from these manufacturers.
Assess the risk of violating trade secret law:
a. You call the supplier and identify yourself as a gourmet chocolate manufacturer and ask for marketing materials about the company and in those materials is a list of customers that you plan to publish on your blog.
If the customer list is something the company generally protects against disclosure and only shares selectively, then your deceptive representations could help the company win a claim you violated trade secret law.
b. The list is incorporated in a legal document you find in a publicly available court file.
Because this information is disclosed in a publicly available legal document, there is little to no legal risk. You should cite to the document in your blogging to provide convincing evidence that this information is publicly available and that you did nothing improper to obtain it.
c. You got the list from the company’s Web site, but it was hastily taken down when corporate communications staff caught wind of your blog posting of that list under the headline: “These Chocolatiers Buy Cocoa From Supplier Linked To Abusive Plantations.” Now the company is threatening you with a trade secret violation claim.
If the company had this information posted on its own publicly available Web site, then it would have a hard time proving the information is a trade secret.
d. You approach a manufacturer and ask whether that company buys cocoa from the supplier and the company confirms it does. When you ask the manufacturer’s chief executive officer whether she is aware of the unsavory origins of the cocoa, she gives you a list of all of the other customers of the supplier to spread the heat. You pocket the list and post it when you get home.
You didn’t do anything improper to obtain the list. If you have no reason to believe the chief executive acted improperly in giving you the list, then there’s no apparent trade secret violation. If, on the other hand, the list is marked “highly confidential,” or the chief executive tells you she shouldn’t be giving you the list, but “What the hey?” then it’s a tougher case and you’d want to proceed with caution. To be on the safe side, perhaps you might call the manufacturers on the list and confirm their relationships with the supplier and post the results of your reporting rather than posting the list itself. You’d probably want to do that anyway in the course of fact checking to protect against the sort of factual error that could support a libel claim should one of the manufacturers be listed erroneously.
On to Rule 6 or return to Rule 5.
(c) Geanne Rosenberg
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