The McLaughlin Group<\/strong><\/h3>\nThere was a sketch on Saturday Night Live<\/a> where Dana Carvey played news talk show host John McLaughlin.<\/p>\nThe recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout \u201cWRONG!\u201d<\/p>\n
I think about that a lot when I\u2019m doing deposition preparation with clients in trade secrets lawsuits.<\/p>\n
Let\u2019s go over some common ways defendants in trade secrets lawsuits go wrong in their depositions. We\u2019ll use our old hypothetical friend Dawn Davis as an example<\/p>\n
1. Are the things defined as \u201cconfidential information\u201d or \u201ctrade secrets\u201d in the agreement actually confidential or secret?<\/strong><\/h3>\nLike most employment agreements, Dawn\u2019s agreement with Paula Payne Windows includes a confidentiality agreement.<\/p>\n
The definition of \u201cconfidential information\u201d looks something like this:<\/p>\n
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2024\/03\/Sample-Conf-Agreement-268x300.png\"\/)
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2024\/03\/Sample-Conf-Agreement-268x300.png\")
<\/p>\n
The deposition questions about it go something like this:<\/p>\n
Q: Can you take a look at the definition of the company\u2019s \u201cconfidential information and trade secrets\u201d in your agreement? Do you see that?<\/em>\u00a0<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: You signed this agreement, right? <\/em><\/p>\nA: Yes, I signed it. <\/em><\/p>\nQ: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em><\/p>\nA: Right.<\/em><\/p>\nWRONG!<\/strong><\/p>\nWhat a difference a single letter can make.<\/p>\n
If the question was \u201cyou agreed<\/em><\/strong> that the things listed in the definition are the company\u2019s confidential information,\u201d then yes would be an acceptable answer. That\u2019s because generally, if you sign an agreement, you agreed to what\u2019s in it.<\/p>\nBut just because you signed the agreement doesn\u2019t mean you now agree<\/em><\/strong> with every statement in the agreement.<\/p>\nSee the distinction?<\/p>\n
Yes, you may have agreed to what\u2019s in the agreement by signing it, but just because the agreement says something is true doesn\u2019t make it true.<\/p>\n
Especially when it comes to a definition of \u201cconfidential information\u201d or \u201ctrade secrets.\u201d<\/p>\n
The problem with this definition\u2014and most definitions of confidential information in such agreements\u2014is that it is both too vague and too broad.<\/p>\n
These are slightly different things.<\/p>\n
The definition is vague, or \u201cindefinite,\u201d because it is not clear what is included and what is not. For example, the definition refers to the company\u2019s \u201cprocesses\u201d and \u201cpolicies.\u201d Which processes and policies? All of them, or just the \u201cconfidential\u201d ones? And which ones are confidential?<\/p>\n
Let\u2019s say Paula Payne Windows has a process for prospecting for new customers: search on the internet for the kind of companies that buy windows, find the contact information for the person there responsible for buying windows, cold call that person, then make a note in the company\u2019s CRM system to follow up later.<\/p>\n
That\u2019s a process, but is it a confidential process? Of course not. Everybody has a process like this. It\u2019s no secret.<\/p>\n
Is that process included in the contract\u2019s definition of \u201cconfidential information\u201d? It\u2019s hard to say.<\/p>\n
But you could read the definition literally to mean that all of the company\u2019s processes are included in the definition of confidential information. And that brings up the second problem: the definition is overbroad.<\/p>\n
The definition is overbroad because on its face it includes things that are not confidential<\/em>.<\/p>\nAn agreement that defines all of the company\u2019s information as confidential would be unreasonable and unenforceable. It would be a de facto non-compete.<\/p>\n
When you understand these two problems, you can answer deposition questions more accurately.<\/p>\n
Q: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em>\u00a0<\/em><\/p>\nA: Not necessarily. <\/em><\/p>\nQ: Why not? <\/em><\/p>\nA: Well, first, I\u2019m not even sure what this definition means. And second, it has things in it that are obviously not confidential information.<\/em><\/p>\nQ: Like what?<\/em><\/p>\nA: Like \u201cprocesses\u201d and \u201cpolicies.\u201d If that means all of the company\u2019s processes and policies, then it includes things that are obviously not a secret.\u00a0<\/em><\/p>\nThis answer won\u2019t make the questioning lawyer happy, but you\u2019re not there to make friends.<\/p>\n
2. Is a customer list a trade secret? <\/strong><\/h3>\nSuppose when Dawn Davis left Paula Payne Windows, she took an Excel spreadsheet showing all her sales from the previous year, including the names of the customers. Dawn says she needed the list because the company owed her commissions, but Paula Payne Windows says the spreadsheet is a confidential customer list.<\/p>\n
So the deposition questioning goes like this:<\/p>\n
Q: You\u2019re not a lawyer, are you?<\/em><\/p>\n\u00a0<\/em>A: No. <\/em><\/p>\n\u00a0<\/em>Q: Ok, I\u2019m not asking for a legal opinion or anything, but do you see this definition of \u201ctrade secrets\u201d from the Texas Uniform Trade Secrets Act?<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: The definition includes \u201clist of actual or potential customers,\u201d right?<\/em><\/p>\nA: Yes, I see that. <\/em>\u00a0<\/em><\/p>\nQ: [in the most casual tone possible] Ok, so you understand a customer list is a trade secret, right?\u201d<\/em><\/p>\nA: Yes, I understand that. <\/em><\/p>\nWRONG! <\/strong><\/p>\nPerhaps we can forgive Dawn for making this mistake. I have seen licensed lawyers make this very argument to judges. \u201cYour Honor, the definition of trade secrets in TUTSA specifically includes customer lists, so my client\u2019s customer list is a trade secret.\u201d<\/p>\n
But the argument is wrong, for two reasons.<\/p>\n
First, if you look at the whole definition of a trade secret, there\u2019s a very important word: \u201cif.\u201d<\/p>\n
A customer list is included in the list of types of things that can<\/em> be a trade secret, if<\/em><\/strong> the rest of the elements of the definition are met (like \u201cindependent economic value\u201d).<\/p>\nThe first problem with the deposition question was that it ignored this important \u201cif.\u201d<\/p>\n
The second problem with the argument is that it just defies common sense.<\/p>\n
Think about it. Suppose Dawn\u2019s spreadsheet lists just five customers, who happen to be the biggest homebuilders in her sales territory. There\u2019s no way that\u2019s a trade secret. All the competitors in that area know who those customers are.<\/p>\n
If you want to know more, I cover this issue in more detail at my blog post When Is a Customer List a Trade Secret<\/a>. I even cite court cases. But you get the idea.<\/p>\nNow that Dawn is armed with the knowledge that a customer list isn\u2019t automatically<\/em> a trade secret, let\u2019s give her another crack at the deposition question:<\/p>\nQ: Ok, so you understand a customer list is a trade secret, right?\u201d <\/em><\/p>\nA: No. <\/em>\u00a0<\/em><\/p>\nQ: But it says that right there in the definition, doesn\u2019t it?<\/em>\u00a0<\/em><\/p>\nA: It says customer list, but there\u2019s more to the definition. <\/em><\/p>\nQ: So you don\u2019t think your customer list is a trade secret?<\/em>\u00a0<\/em><\/p>\nA: No. Everybody in our industry knows who those customers are. <\/em><\/p>\nNow that we\u2019ve avoided that confusion, let\u2019s look at another category of information that can<\/em> be a trade secret but isn\u2019t necessarily a trade secret: prices.<\/p>\n3. Are the company\u2019s prices trade secrets?<\/strong><\/h3>\nAfter customer lists, the next most common type of alleged \u201ctrade secret\u201d is prices. I cover this at my blog post The Price Undercutting Theory in Trade Secrets Litigation<\/a>.<\/p>\nHere\u2019s how the lawyer for Paula Payne Windows might try to set it up in Dawn\u2019s deposition:<\/p>\n
Q: Are you working for Real Cheap Windows now?<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: Let\u2019s say a competitor calls you up and asks you for the prices you\u2019re charging customers this week, would you tell him? <\/em><\/p>\nA: Uh . . . I don\u2019t think that has ever happened. <\/em><\/p>\nQ: But if it did, would you tell them?<\/em><\/p>\nA: I mean, I don\u2019t think so. <\/em><\/p>\nQ: Why not?<\/em><\/p>\nA: Well it\u2019s none of their business. <\/em><\/p>\nQ: And if they knew your prices they could offer the same customers lower prices, right?<\/em><\/p>\nA: That could happen. <\/em><\/p>\nQ: Can your competitors just do a Google search and find your prices? <\/em><\/p>\nA: No. <\/em>\u00a0<\/em><\/p>\nQ: Right, so the prices your company charges its customers are confidential, right? <\/em><\/p>\nA: Yeah, I guess so. <\/em><\/p>\nWRONG! <\/strong>\u00a0<\/strong><\/p>\n![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2024\/03\/pexels-gratisography-2882-300x200.jpg\"\/)
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2024\/03\/pexels-gratisography-2882-300x200.jpg\")
Don\u2019t let this happen in your deposition<\/figcaption><\/figure>\nEverything leading up to the last question is fine, but are the prices really a secret?<\/p>\n
Nine times out of ten, the answer will be no, at least in my experience and opinion.<\/p>\n
That\u2019s because in the vast majority of cases, there\u2019s nothing to stop the customers from telling one competitor what another competitor is charging.<\/p>\n
In fact, in many industries, it\u2019s common for customers to do so. \u201cHey, Fred, Bubba\u2019s Oilfield Supply says it can get me those frac valves for five thousand apiece this week, can you beat that?\u201d<\/p>\n
Unless the company has a nondisclosure agreement with the customer that says the customer must keep the company\u2019s prices confidential, I don\u2019t see how the company can genuinely claim the prices are a secret, or that it took the required \u201creasonable measures\u201d to keep the prices secret.<\/p>\n
Keep in mind, this is just my opinion. But it is usually correct.<\/p>\n
Knowing that, here\u2019s a better way for Dawn to answer deposition questions about prices:<\/p>\n
Q: So the prices your company charges its customers are confidential, right? <\/em>\u00a0<\/em><\/p>\nA: No.<\/em><\/p>\nQ: They\u2019re not confidential? Are you saying you would just give them out to your competitors?<\/em><\/p>\nA: I didn\u2019t say that. <\/em><\/p>\nQ: Well, if the prices aren\u2019t confidential, why wouldn\u2019t you share them?<\/em><\/p>\nA: They can easily go and ask my customer for the prices, and I can\u2019t stop the customer from telling them. But that doesn\u2019t mean it\u2019s my job to help them. <\/em><\/p>\nSo, those prices on the spreadsheet Dawn took from Paula Payne Windows, maybe they\u2019re not so secret.<\/p>\n
That, of course, does not mean it was a good idea for Dawn to take the spreadsheet.<\/p>\n
4. What does the forensics show?<\/strong><\/h3>\nIt\u2019s a bad idea for departing employees to take or keep any company documents.<\/p>\n
With the exception of their agreements with the company, which I think are generally fair game for an employee to keep. But generally, don\u2019t take company documents when you leave!<\/p>\n
There are multiple reasons for this, but maybe the most important one is that whatever documents the employee takes, those will be the documents the company claims contain its alleged \u201ctrade secrets\u201d in the subsequent trade secrets lawsuit. I call this Wolfe\u2019s First Law of Trade Secrets Litigation<\/a>.<\/p>\nHere\u2019s how it might go down in Dawn\u2019s case:<\/p>\n
Q: When you were working for Paula Payne Windows, did they provide a computer?<\/em><\/p>\nA: Yeah, I had a computer at the office. <\/em><\/p>\nQ: Did you ever use USB drives?<\/em><\/p>\nA: You mean like a thumb drive? <\/em>\u00a0<\/em><\/p>\nQ: Yes.<\/em>\u00a0<\/em><\/p>\nA: Sure, we used those all the time, like if I needed to take documents with me on a customer visit. <\/em><\/p>\nQ: Let me show you Plaintiff\u2019s Exhibit 13 to your deposition. That\u2019s a report our forensic expert prepared. Do you see that? <\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: Do you see line 7 on page 2 that shows on April 7, 2023, the day after you gave notice, you plugged a Seagate thumb drive into your computer at work and copied 12 sales reports to it? <\/em>\u00a0<\/em><\/p>\nA: Yes. <\/em><\/p>\nWRONG! <\/strong><\/p>\nDawn doesn\u2019t have any personal knowledge of the forensic report or how it was prepared. And her recollection is probably not that specific. How can she be sure?<\/p>\n
Here\u2019s a better way for Dawn to answer:<\/p>\n
Q: Do you see line 7 on page 2 that shows you copied 12 files on to a thumb drive? <\/em><\/p>\nA: I didn\u2019t prepare this report. <\/em>\u00a0<\/em><\/p>\nQ: Ok, but you see where it says that, right?<\/em><\/p>\nA: I see that the report says that. <\/em><\/p>\nQ: Well, are you denying that you copied 12 files on to that thumb drive on April 7, 2023? <\/em><\/p>\nA: I\u2019m not denying there were times when I put files on a thumb drive, but I can\u2019t remember if I copied those specific files on that specific date. <\/em>\u00a0<\/em><\/p>\nQ: Ok, but you can\u2019t rule it out? <\/em><\/p>\nA: I can\u2019t rule it in or out. I just don\u2019t remember. <\/em><\/p>\nSticking to what you personally know is good deposition advice generally, but especially when it comes to computer forensics in a trade secrets lawsuit.<\/p>\n
Let me stress: I am not<\/em> saying Dawn should pretend like she doesn\u2019t know or doesn\u2019t remember if she does\u00a0<\/em>remember. Every witness should tell the truth. If Dawn clearly remembers, \u201cyes, I copied 12 files on to a thumb drive on April 7, 2023,\u201d then she should say so.<\/p>\nBut it\u2019s rare that the witness will remember that specifically.<\/p>\n
In most cases, a witness in a deposition is not going to remember every little thing she did on a computer years earlier, before any lawsuit was filed. She certainly won\u2019t remember things like the serial number of the USB drive.<\/p>\n
And that brings up the final common deposition mistake to avoid in a trade secrets lawsuit.<\/p>\n
5. Undermining your credibility by overstating your case<\/strong><\/h3>\nMaintaining your credibility is critically important in any lawsuit.<\/p>\n
And if you\u2019re a former employee defendant in a trade secrets lawsuit, it is even more important than usual. Right off the bat your credibility is under attack because you did something your former employer portrays as sneaky and underhanded. \u201cTheft!\u201d they will cry.<\/p>\n
And you should expect the plaintiff\u2019s lawyer will go into the deposition ready to set you up. It might go like this:<\/p>\n
Q: Can you take a look at page 27 of the Paula Payne Windows Employee Handbook?<\/em><\/p>\nA: Ok, yes, I\u2019m there. <\/em><\/p>\nQ: It says \u201cEmployees must take care not to disseminate company documents outside the company, such as sending them to personal email addresses.\u201d Did I read that correctly?<\/em><\/p>\nA: Nobody ever paid attention to that. <\/em><\/p>\nQ: Ok, but that was the company\u2019s stated policy, correct?<\/em><\/p>\nA: Yeah, I guess. <\/em><\/p>\nQ: Ok, so you knew it was against company policy to email yourself company documents, right?<\/em><\/p>\nA: Right. <\/em><\/p>\nQ: Did you ever do that?<\/em><\/p>\nA: Absolutely not. I never emailed myself company documents. <\/em><\/p>\nWRONG! <\/strong><\/p>\nThe answer is wrong because you already know what\u2019s coming next: Impeachment.<\/p>\n
The lawyer for Paula Payne Windows will show Dawn a copy of an email from her company email account to her personal Gmail account attaching a proposal to a customer.<\/p>\n
\u201cOh, I forgot about that!\u201d Dawn will say. \u201cI was going to meet with a customer out of the office the next day, and I needed to be able to print out the proposal at home.\u201d<\/p>\n
A legitimate explanation, if true. But the damage will already be done.<\/p>\n
So for questions like this, it\u2019s important to be cautious and not overstate your case.<\/p>\n
In this example, there are basically three possibilities:<\/p>\n
\n- Dawn remembers emailing herself the proposal, or at least remembers emailing herself generally.<\/li>\n
- Dawn has no recollection of emailing herself company documents, but knows it\u2019s possible she did.<\/li>\n
- Dawn knows for a fact she never emailed company documents to herself.<\/li>\n<\/ol>\n
If 1 is true, then Dawn should say so.<\/p>\n
If 2 is true, then Dawn should say something like \u201cI don\u2019t have a specific memory of doing that.\u201d Then she\u2019s leaving room for the possibility that it happened.<\/p>\n
If 3 is true, then Dawn could<\/em> say she never emailed herself company documents, but even then, she should proceed with caution.<\/p>\nYou see, memory is a funny thing. Every litigator has experienced a client who was 100% sure of some fact or sequence of events, and then the documents show her memory is just flat wrong.<\/p>\n
So even if Dawn is absolutely sure, it\u2019s still a good idea to say something like \u201cI don\u2019t think I ever did that.\u201d<\/p>\n
You don\u2019t need to overstate the good facts that are on your side.<\/p>\n
On a scale of 1 to 14, 1 being lowest degree of likelihood, 14 being absolute metaphysical certitude, what are the chances you\u2019ll make a mistake?<\/p>\n
Go ahead, say your answer.<\/p>\n
WRONG! <\/strong><\/p>\n_______________________<\/p>\n
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2020\/05\/Head-Shot-Casual-300x240.jpg\"\/)
![\"\"](\"https:\/\/fiveminutelaw.com\/wp-content\/uploads\/2020\/05\/Head-Shot-Casual-300x240.jpg\")
<\/p>\n
Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\nThese are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":"The McLaughlin Group There was a sketch on Saturday Night Live where Dana Carvey played news talk show host John McLaughlin. The recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout \u201cWRONG!\u201d I think about that a lot when I\u2019m doing […]<\/p>\n","protected":false},"author":1,"featured_media":64587,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[11514,35058,22414,13668,6075,9792],"dealstore":[],"offerexpiration":[],"class_list":["post-64586","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-common","tag-deposition","tag-litigation","tag-mistakes","tag-secrets","tag-trade"],"yoast_head":"\n
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The recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout \u201cWRONG!\u201d<\/p>\n
I think about that a lot when I\u2019m doing deposition preparation with clients in trade secrets lawsuits.<\/p>\n
Let\u2019s go over some common ways defendants in trade secrets lawsuits go wrong in their depositions. We\u2019ll use our old hypothetical friend Dawn Davis as an example<\/p>\n
1. Are the things defined as \u201cconfidential information\u201d or \u201ctrade secrets\u201d in the agreement actually confidential or secret?<\/strong><\/h3>\nLike most employment agreements, Dawn\u2019s agreement with Paula Payne Windows includes a confidentiality agreement.<\/p>\n
The definition of \u201cconfidential information\u201d looks something like this:<\/p>\n
<\/p>\n
The deposition questions about it go something like this:<\/p>\n
Q: Can you take a look at the definition of the company\u2019s \u201cconfidential information and trade secrets\u201d in your agreement? Do you see that?<\/em>\u00a0<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: You signed this agreement, right? <\/em><\/p>\nA: Yes, I signed it. <\/em><\/p>\nQ: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em><\/p>\nA: Right.<\/em><\/p>\nWRONG!<\/strong><\/p>\nWhat a difference a single letter can make.<\/p>\n
If the question was \u201cyou agreed<\/em><\/strong> that the things listed in the definition are the company\u2019s confidential information,\u201d then yes would be an acceptable answer. That\u2019s because generally, if you sign an agreement, you agreed to what\u2019s in it.<\/p>\nBut just because you signed the agreement doesn\u2019t mean you now agree<\/em><\/strong> with every statement in the agreement.<\/p>\nSee the distinction?<\/p>\n
Yes, you may have agreed to what\u2019s in the agreement by signing it, but just because the agreement says something is true doesn\u2019t make it true.<\/p>\n
Especially when it comes to a definition of \u201cconfidential information\u201d or \u201ctrade secrets.\u201d<\/p>\n
The problem with this definition\u2014and most definitions of confidential information in such agreements\u2014is that it is both too vague and too broad.<\/p>\n
These are slightly different things.<\/p>\n
The definition is vague, or \u201cindefinite,\u201d because it is not clear what is included and what is not. For example, the definition refers to the company\u2019s \u201cprocesses\u201d and \u201cpolicies.\u201d Which processes and policies? All of them, or just the \u201cconfidential\u201d ones? And which ones are confidential?<\/p>\n
Let\u2019s say Paula Payne Windows has a process for prospecting for new customers: search on the internet for the kind of companies that buy windows, find the contact information for the person there responsible for buying windows, cold call that person, then make a note in the company\u2019s CRM system to follow up later.<\/p>\n
That\u2019s a process, but is it a confidential process? Of course not. Everybody has a process like this. It\u2019s no secret.<\/p>\n
Is that process included in the contract\u2019s definition of \u201cconfidential information\u201d? It\u2019s hard to say.<\/p>\n
But you could read the definition literally to mean that all of the company\u2019s processes are included in the definition of confidential information. And that brings up the second problem: the definition is overbroad.<\/p>\n
The definition is overbroad because on its face it includes things that are not confidential<\/em>.<\/p>\nAn agreement that defines all of the company\u2019s information as confidential would be unreasonable and unenforceable. It would be a de facto non-compete.<\/p>\n
When you understand these two problems, you can answer deposition questions more accurately.<\/p>\n
Q: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em>\u00a0<\/em><\/p>\nA: Not necessarily. <\/em><\/p>\nQ: Why not? <\/em><\/p>\nA: Well, first, I\u2019m not even sure what this definition means. And second, it has things in it that are obviously not confidential information.<\/em><\/p>\nQ: Like what?<\/em><\/p>\nA: Like \u201cprocesses\u201d and \u201cpolicies.\u201d If that means all of the company\u2019s processes and policies, then it includes things that are obviously not a secret.\u00a0<\/em><\/p>\nThis answer won\u2019t make the questioning lawyer happy, but you\u2019re not there to make friends.<\/p>\n
2. Is a customer list a trade secret? <\/strong><\/h3>\nSuppose when Dawn Davis left Paula Payne Windows, she took an Excel spreadsheet showing all her sales from the previous year, including the names of the customers. Dawn says she needed the list because the company owed her commissions, but Paula Payne Windows says the spreadsheet is a confidential customer list.<\/p>\n
So the deposition questioning goes like this:<\/p>\n
Q: You\u2019re not a lawyer, are you?<\/em><\/p>\n\u00a0<\/em>A: No. <\/em><\/p>\n\u00a0<\/em>Q: Ok, I\u2019m not asking for a legal opinion or anything, but do you see this definition of \u201ctrade secrets\u201d from the Texas Uniform Trade Secrets Act?<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: The definition includes \u201clist of actual or potential customers,\u201d right?<\/em><\/p>\nA: Yes, I see that. <\/em>\u00a0<\/em><\/p>\nQ: [in the most casual tone possible] Ok, so you understand a customer list is a trade secret, right?\u201d<\/em><\/p>\nA: Yes, I understand that. <\/em><\/p>\nWRONG! <\/strong><\/p>\nPerhaps we can forgive Dawn for making this mistake. I have seen licensed lawyers make this very argument to judges. \u201cYour Honor, the definition of trade secrets in TUTSA specifically includes customer lists, so my client\u2019s customer list is a trade secret.\u201d<\/p>\n
But the argument is wrong, for two reasons.<\/p>\n
First, if you look at the whole definition of a trade secret, there\u2019s a very important word: \u201cif.\u201d<\/p>\n
A customer list is included in the list of types of things that can<\/em> be a trade secret, if<\/em><\/strong> the rest of the elements of the definition are met (like \u201cindependent economic value\u201d).<\/p>\nThe first problem with the deposition question was that it ignored this important \u201cif.\u201d<\/p>\n
The second problem with the argument is that it just defies common sense.<\/p>\n
Think about it. Suppose Dawn\u2019s spreadsheet lists just five customers, who happen to be the biggest homebuilders in her sales territory. There\u2019s no way that\u2019s a trade secret. All the competitors in that area know who those customers are.<\/p>\n
If you want to know more, I cover this issue in more detail at my blog post When Is a Customer List a Trade Secret<\/a>. I even cite court cases. But you get the idea.<\/p>\nNow that Dawn is armed with the knowledge that a customer list isn\u2019t automatically<\/em> a trade secret, let\u2019s give her another crack at the deposition question:<\/p>\nQ: Ok, so you understand a customer list is a trade secret, right?\u201d <\/em><\/p>\nA: No. <\/em>\u00a0<\/em><\/p>\nQ: But it says that right there in the definition, doesn\u2019t it?<\/em>\u00a0<\/em><\/p>\nA: It says customer list, but there\u2019s more to the definition. <\/em><\/p>\nQ: So you don\u2019t think your customer list is a trade secret?<\/em>\u00a0<\/em><\/p>\nA: No. Everybody in our industry knows who those customers are. <\/em><\/p>\nNow that we\u2019ve avoided that confusion, let\u2019s look at another category of information that can<\/em> be a trade secret but isn\u2019t necessarily a trade secret: prices.<\/p>\n3. Are the company\u2019s prices trade secrets?<\/strong><\/h3>\nAfter customer lists, the next most common type of alleged \u201ctrade secret\u201d is prices. I cover this at my blog post The Price Undercutting Theory in Trade Secrets Litigation<\/a>.<\/p>\nHere\u2019s how the lawyer for Paula Payne Windows might try to set it up in Dawn\u2019s deposition:<\/p>\n
Q: Are you working for Real Cheap Windows now?<\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: Let\u2019s say a competitor calls you up and asks you for the prices you\u2019re charging customers this week, would you tell him? <\/em><\/p>\nA: Uh . . . I don\u2019t think that has ever happened. <\/em><\/p>\nQ: But if it did, would you tell them?<\/em><\/p>\nA: I mean, I don\u2019t think so. <\/em><\/p>\nQ: Why not?<\/em><\/p>\nA: Well it\u2019s none of their business. <\/em><\/p>\nQ: And if they knew your prices they could offer the same customers lower prices, right?<\/em><\/p>\nA: That could happen. <\/em><\/p>\nQ: Can your competitors just do a Google search and find your prices? <\/em><\/p>\nA: No. <\/em>\u00a0<\/em><\/p>\nQ: Right, so the prices your company charges its customers are confidential, right? <\/em><\/p>\nA: Yeah, I guess so. <\/em><\/p>\nWRONG! <\/strong>\u00a0<\/strong><\/p>\nDon\u2019t let this happen in your deposition<\/figcaption><\/figure>\nEverything leading up to the last question is fine, but are the prices really a secret?<\/p>\n
Nine times out of ten, the answer will be no, at least in my experience and opinion.<\/p>\n
That\u2019s because in the vast majority of cases, there\u2019s nothing to stop the customers from telling one competitor what another competitor is charging.<\/p>\n
In fact, in many industries, it\u2019s common for customers to do so. \u201cHey, Fred, Bubba\u2019s Oilfield Supply says it can get me those frac valves for five thousand apiece this week, can you beat that?\u201d<\/p>\n
Unless the company has a nondisclosure agreement with the customer that says the customer must keep the company\u2019s prices confidential, I don\u2019t see how the company can genuinely claim the prices are a secret, or that it took the required \u201creasonable measures\u201d to keep the prices secret.<\/p>\n
Keep in mind, this is just my opinion. But it is usually correct.<\/p>\n
Knowing that, here\u2019s a better way for Dawn to answer deposition questions about prices:<\/p>\n
Q: So the prices your company charges its customers are confidential, right? <\/em>\u00a0<\/em><\/p>\nA: No.<\/em><\/p>\nQ: They\u2019re not confidential? Are you saying you would just give them out to your competitors?<\/em><\/p>\nA: I didn\u2019t say that. <\/em><\/p>\nQ: Well, if the prices aren\u2019t confidential, why wouldn\u2019t you share them?<\/em><\/p>\nA: They can easily go and ask my customer for the prices, and I can\u2019t stop the customer from telling them. But that doesn\u2019t mean it\u2019s my job to help them. <\/em><\/p>\nSo, those prices on the spreadsheet Dawn took from Paula Payne Windows, maybe they\u2019re not so secret.<\/p>\n
That, of course, does not mean it was a good idea for Dawn to take the spreadsheet.<\/p>\n
4. What does the forensics show?<\/strong><\/h3>\nIt\u2019s a bad idea for departing employees to take or keep any company documents.<\/p>\n
With the exception of their agreements with the company, which I think are generally fair game for an employee to keep. But generally, don\u2019t take company documents when you leave!<\/p>\n
There are multiple reasons for this, but maybe the most important one is that whatever documents the employee takes, those will be the documents the company claims contain its alleged \u201ctrade secrets\u201d in the subsequent trade secrets lawsuit. I call this Wolfe\u2019s First Law of Trade Secrets Litigation<\/a>.<\/p>\nHere\u2019s how it might go down in Dawn\u2019s case:<\/p>\n
Q: When you were working for Paula Payne Windows, did they provide a computer?<\/em><\/p>\nA: Yeah, I had a computer at the office. <\/em><\/p>\nQ: Did you ever use USB drives?<\/em><\/p>\nA: You mean like a thumb drive? <\/em>\u00a0<\/em><\/p>\nQ: Yes.<\/em>\u00a0<\/em><\/p>\nA: Sure, we used those all the time, like if I needed to take documents with me on a customer visit. <\/em><\/p>\nQ: Let me show you Plaintiff\u2019s Exhibit 13 to your deposition. That\u2019s a report our forensic expert prepared. Do you see that? <\/em><\/p>\nA: Yes. <\/em><\/p>\nQ: Do you see line 7 on page 2 that shows on April 7, 2023, the day after you gave notice, you plugged a Seagate thumb drive into your computer at work and copied 12 sales reports to it? <\/em>\u00a0<\/em><\/p>\nA: Yes. <\/em><\/p>\nWRONG! <\/strong><\/p>\nDawn doesn\u2019t have any personal knowledge of the forensic report or how it was prepared. And her recollection is probably not that specific. How can she be sure?<\/p>\n
Here\u2019s a better way for Dawn to answer:<\/p>\n
Q: Do you see line 7 on page 2 that shows you copied 12 files on to a thumb drive? <\/em><\/p>\nA: I didn\u2019t prepare this report. <\/em>\u00a0<\/em><\/p>\nQ: Ok, but you see where it says that, right?<\/em><\/p>\nA: I see that the report says that. <\/em><\/p>\nQ: Well, are you denying that you copied 12 files on to that thumb drive on April 7, 2023? <\/em><\/p>\nA: I\u2019m not denying there were times when I put files on a thumb drive, but I can\u2019t remember if I copied those specific files on that specific date. <\/em>\u00a0<\/em><\/p>\nQ: Ok, but you can\u2019t rule it out? <\/em><\/p>\nA: I can\u2019t rule it in or out. I just don\u2019t remember. <\/em><\/p>\nSticking to what you personally know is good deposition advice generally, but especially when it comes to computer forensics in a trade secrets lawsuit.<\/p>\n
Let me stress: I am not<\/em> saying Dawn should pretend like she doesn\u2019t know or doesn\u2019t remember if she does\u00a0<\/em>remember. Every witness should tell the truth. If Dawn clearly remembers, \u201cyes, I copied 12 files on to a thumb drive on April 7, 2023,\u201d then she should say so.<\/p>\nBut it\u2019s rare that the witness will remember that specifically.<\/p>\n
In most cases, a witness in a deposition is not going to remember every little thing she did on a computer years earlier, before any lawsuit was filed. She certainly won\u2019t remember things like the serial number of the USB drive.<\/p>\n
And that brings up the final common deposition mistake to avoid in a trade secrets lawsuit.<\/p>\n
5. Undermining your credibility by overstating your case<\/strong><\/h3>\nMaintaining your credibility is critically important in any lawsuit.<\/p>\n
And if you\u2019re a former employee defendant in a trade secrets lawsuit, it is even more important than usual. Right off the bat your credibility is under attack because you did something your former employer portrays as sneaky and underhanded. \u201cTheft!\u201d they will cry.<\/p>\n
And you should expect the plaintiff\u2019s lawyer will go into the deposition ready to set you up. It might go like this:<\/p>\n
Q: Can you take a look at page 27 of the Paula Payne Windows Employee Handbook?<\/em><\/p>\nA: Ok, yes, I\u2019m there. <\/em><\/p>\nQ: It says \u201cEmployees must take care not to disseminate company documents outside the company, such as sending them to personal email addresses.\u201d Did I read that correctly?<\/em><\/p>\nA: Nobody ever paid attention to that. <\/em><\/p>\nQ: Ok, but that was the company\u2019s stated policy, correct?<\/em><\/p>\nA: Yeah, I guess. <\/em><\/p>\nQ: Ok, so you knew it was against company policy to email yourself company documents, right?<\/em><\/p>\nA: Right. <\/em><\/p>\nQ: Did you ever do that?<\/em><\/p>\nA: Absolutely not. I never emailed myself company documents. <\/em><\/p>\nWRONG! <\/strong><\/p>\nThe answer is wrong because you already know what\u2019s coming next: Impeachment.<\/p>\n
The lawyer for Paula Payne Windows will show Dawn a copy of an email from her company email account to her personal Gmail account attaching a proposal to a customer.<\/p>\n
\u201cOh, I forgot about that!\u201d Dawn will say. \u201cI was going to meet with a customer out of the office the next day, and I needed to be able to print out the proposal at home.\u201d<\/p>\n
A legitimate explanation, if true. But the damage will already be done.<\/p>\n
So for questions like this, it\u2019s important to be cautious and not overstate your case.<\/p>\n
In this example, there are basically three possibilities:<\/p>\n
\n- Dawn remembers emailing herself the proposal, or at least remembers emailing herself generally.<\/li>\n
- Dawn has no recollection of emailing herself company documents, but knows it\u2019s possible she did.<\/li>\n
- Dawn knows for a fact she never emailed company documents to herself.<\/li>\n<\/ol>\n
If 1 is true, then Dawn should say so.<\/p>\n
If 2 is true, then Dawn should say something like \u201cI don\u2019t have a specific memory of doing that.\u201d Then she\u2019s leaving room for the possibility that it happened.<\/p>\n
If 3 is true, then Dawn could<\/em> say she never emailed herself company documents, but even then, she should proceed with caution.<\/p>\nYou see, memory is a funny thing. Every litigator has experienced a client who was 100% sure of some fact or sequence of events, and then the documents show her memory is just flat wrong.<\/p>\n
So even if Dawn is absolutely sure, it\u2019s still a good idea to say something like \u201cI don\u2019t think I ever did that.\u201d<\/p>\n
You don\u2019t need to overstate the good facts that are on your side.<\/p>\n
On a scale of 1 to 14, 1 being lowest degree of likelihood, 14 being absolute metaphysical certitude, what are the chances you\u2019ll make a mistake?<\/p>\n
Go ahead, say your answer.<\/p>\n
WRONG! <\/strong><\/p>\n_______________________<\/p>\n
<\/p>\n
Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\nThese are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":"The McLaughlin Group There was a sketch on Saturday Night Live where Dana Carvey played news talk show host John McLaughlin. The recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout \u201cWRONG!\u201d I think about that a lot when I\u2019m doing […]<\/p>\n","protected":false},"author":1,"featured_media":64587,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[11514,35058,22414,13668,6075,9792],"dealstore":[],"offerexpiration":[],"class_list":["post-64586","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-common","tag-deposition","tag-litigation","tag-mistakes","tag-secrets","tag-trade"],"yoast_head":"\n
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<\/p>\nA: Yes. <\/em><\/p>\n Q: You signed this agreement, right? <\/em><\/p>\n A: Yes, I signed it. <\/em><\/p>\n Q: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em><\/p>\n A: Right.<\/em><\/p>\n WRONG!<\/strong><\/p>\n What a difference a single letter can make.<\/p>\n If the question was \u201cyou agreed<\/em><\/strong> that the things listed in the definition are the company\u2019s confidential information,\u201d then yes would be an acceptable answer. That\u2019s because generally, if you sign an agreement, you agreed to what\u2019s in it.<\/p>\n But just because you signed the agreement doesn\u2019t mean you now agree<\/em><\/strong> with every statement in the agreement.<\/p>\n See the distinction?<\/p>\n Yes, you may have agreed to what\u2019s in the agreement by signing it, but just because the agreement says something is true doesn\u2019t make it true.<\/p>\n Especially when it comes to a definition of \u201cconfidential information\u201d or \u201ctrade secrets.\u201d<\/p>\n The problem with this definition\u2014and most definitions of confidential information in such agreements\u2014is that it is both too vague and too broad.<\/p>\n These are slightly different things.<\/p>\n The definition is vague, or \u201cindefinite,\u201d because it is not clear what is included and what is not. For example, the definition refers to the company\u2019s \u201cprocesses\u201d and \u201cpolicies.\u201d Which processes and policies? All of them, or just the \u201cconfidential\u201d ones? And which ones are confidential?<\/p>\n Let\u2019s say Paula Payne Windows has a process for prospecting for new customers: search on the internet for the kind of companies that buy windows, find the contact information for the person there responsible for buying windows, cold call that person, then make a note in the company\u2019s CRM system to follow up later.<\/p>\n That\u2019s a process, but is it a confidential process? Of course not. Everybody has a process like this. It\u2019s no secret.<\/p>\n Is that process included in the contract\u2019s definition of \u201cconfidential information\u201d? It\u2019s hard to say.<\/p>\n But you could read the definition literally to mean that all of the company\u2019s processes are included in the definition of confidential information. And that brings up the second problem: the definition is overbroad.<\/p>\n The definition is overbroad because on its face it includes things that are not confidential<\/em>.<\/p>\n An agreement that defines all of the company\u2019s information as confidential would be unreasonable and unenforceable. It would be a de facto non-compete.<\/p>\n When you understand these two problems, you can answer deposition questions more accurately.<\/p>\n Q: So you agree that the things listed in this definition are the company\u2019s confidential information, right? <\/em>\u00a0<\/em><\/p>\n A: Not necessarily. <\/em><\/p>\n Q: Why not? <\/em><\/p>\n A: Well, first, I\u2019m not even sure what this definition means. And second, it has things in it that are obviously not confidential information.<\/em><\/p>\n Q: Like what?<\/em><\/p>\n A: Like \u201cprocesses\u201d and \u201cpolicies.\u201d If that means all of the company\u2019s processes and policies, then it includes things that are obviously not a secret.\u00a0<\/em><\/p>\n This answer won\u2019t make the questioning lawyer happy, but you\u2019re not there to make friends.<\/p>\n Suppose when Dawn Davis left Paula Payne Windows, she took an Excel spreadsheet showing all her sales from the previous year, including the names of the customers. Dawn says she needed the list because the company owed her commissions, but Paula Payne Windows says the spreadsheet is a confidential customer list.<\/p>\n So the deposition questioning goes like this:<\/p>\n Q: You\u2019re not a lawyer, are you?<\/em><\/p>\n \u00a0<\/em>A: No. <\/em><\/p>\n \u00a0<\/em>Q: Ok, I\u2019m not asking for a legal opinion or anything, but do you see this definition of \u201ctrade secrets\u201d from the Texas Uniform Trade Secrets Act?<\/em><\/p>\n A: Yes. <\/em><\/p>\n Q: The definition includes \u201clist of actual or potential customers,\u201d right?<\/em><\/p>\n A: Yes, I see that. <\/em>\u00a0<\/em><\/p>\n Q: [in the most casual tone possible] Ok, so you understand a customer list is a trade secret, right?\u201d<\/em><\/p>\n A: Yes, I understand that. <\/em><\/p>\n WRONG! <\/strong><\/p>\n Perhaps we can forgive Dawn for making this mistake. I have seen licensed lawyers make this very argument to judges. \u201cYour Honor, the definition of trade secrets in TUTSA specifically includes customer lists, so my client\u2019s customer list is a trade secret.\u201d<\/p>\n But the argument is wrong, for two reasons.<\/p>\n First, if you look at the whole definition of a trade secret, there\u2019s a very important word: \u201cif.\u201d<\/p>\n A customer list is included in the list of types of things that can<\/em> be a trade secret, if<\/em><\/strong> the rest of the elements of the definition are met (like \u201cindependent economic value\u201d).<\/p>\n The first problem with the deposition question was that it ignored this important \u201cif.\u201d<\/p>\n The second problem with the argument is that it just defies common sense.<\/p>\n Think about it. Suppose Dawn\u2019s spreadsheet lists just five customers, who happen to be the biggest homebuilders in her sales territory. There\u2019s no way that\u2019s a trade secret. All the competitors in that area know who those customers are.<\/p>\n If you want to know more, I cover this issue in more detail at my blog post When Is a Customer List a Trade Secret<\/a>. I even cite court cases. But you get the idea.<\/p>\n Now that Dawn is armed with the knowledge that a customer list isn\u2019t automatically<\/em> a trade secret, let\u2019s give her another crack at the deposition question:<\/p>\n Q: Ok, so you understand a customer list is a trade secret, right?\u201d <\/em><\/p>\n A: No. <\/em>\u00a0<\/em><\/p>\n Q: But it says that right there in the definition, doesn\u2019t it?<\/em>\u00a0<\/em><\/p>\n A: It says customer list, but there\u2019s more to the definition. <\/em><\/p>\n Q: So you don\u2019t think your customer list is a trade secret?<\/em>\u00a0<\/em><\/p>\n A: No. Everybody in our industry knows who those customers are. <\/em><\/p>\n Now that we\u2019ve avoided that confusion, let\u2019s look at another category of information that can<\/em> be a trade secret but isn\u2019t necessarily a trade secret: prices.<\/p>\n After customer lists, the next most common type of alleged \u201ctrade secret\u201d is prices. I cover this at my blog post The Price Undercutting Theory in Trade Secrets Litigation<\/a>.<\/p>\n Here\u2019s how the lawyer for Paula Payne Windows might try to set it up in Dawn\u2019s deposition:<\/p>\n Q: Are you working for Real Cheap Windows now?<\/em><\/p>\n A: Yes. <\/em><\/p>\n Q: Let\u2019s say a competitor calls you up and asks you for the prices you\u2019re charging customers this week, would you tell him? <\/em><\/p>\n A: Uh . . . I don\u2019t think that has ever happened. <\/em><\/p>\n Q: But if it did, would you tell them?<\/em><\/p>\n A: I mean, I don\u2019t think so. <\/em><\/p>\n Q: Why not?<\/em><\/p>\n A: Well it\u2019s none of their business. <\/em><\/p>\n Q: And if they knew your prices they could offer the same customers lower prices, right?<\/em><\/p>\n A: That could happen. <\/em><\/p>\n Q: Can your competitors just do a Google search and find your prices? <\/em><\/p>\n A: No. <\/em>\u00a0<\/em><\/p>\n Q: Right, so the prices your company charges its customers are confidential, right? <\/em><\/p>\n A: Yeah, I guess so. <\/em><\/p>\n WRONG! <\/strong>\u00a0<\/strong><\/p>\n Everything leading up to the last question is fine, but are the prices really a secret?<\/p>\n Nine times out of ten, the answer will be no, at least in my experience and opinion.<\/p>\n That\u2019s because in the vast majority of cases, there\u2019s nothing to stop the customers from telling one competitor what another competitor is charging.<\/p>\n In fact, in many industries, it\u2019s common for customers to do so. \u201cHey, Fred, Bubba\u2019s Oilfield Supply says it can get me those frac valves for five thousand apiece this week, can you beat that?\u201d<\/p>\n Unless the company has a nondisclosure agreement with the customer that says the customer must keep the company\u2019s prices confidential, I don\u2019t see how the company can genuinely claim the prices are a secret, or that it took the required \u201creasonable measures\u201d to keep the prices secret.<\/p>\n Keep in mind, this is just my opinion. But it is usually correct.<\/p>\n Knowing that, here\u2019s a better way for Dawn to answer deposition questions about prices:<\/p>\n Q: So the prices your company charges its customers are confidential, right? <\/em>\u00a0<\/em><\/p>\n A: No.<\/em><\/p>\n Q: They\u2019re not confidential? Are you saying you would just give them out to your competitors?<\/em><\/p>\n A: I didn\u2019t say that. <\/em><\/p>\n Q: Well, if the prices aren\u2019t confidential, why wouldn\u2019t you share them?<\/em><\/p>\n A: They can easily go and ask my customer for the prices, and I can\u2019t stop the customer from telling them. But that doesn\u2019t mean it\u2019s my job to help them. <\/em><\/p>\n So, those prices on the spreadsheet Dawn took from Paula Payne Windows, maybe they\u2019re not so secret.<\/p>\n That, of course, does not mean it was a good idea for Dawn to take the spreadsheet.<\/p>\n It\u2019s a bad idea for departing employees to take or keep any company documents.<\/p>\n With the exception of their agreements with the company, which I think are generally fair game for an employee to keep. But generally, don\u2019t take company documents when you leave!<\/p>\n There are multiple reasons for this, but maybe the most important one is that whatever documents the employee takes, those will be the documents the company claims contain its alleged \u201ctrade secrets\u201d in the subsequent trade secrets lawsuit. I call this Wolfe\u2019s First Law of Trade Secrets Litigation<\/a>.<\/p>\n Here\u2019s how it might go down in Dawn\u2019s case:<\/p>\n Q: When you were working for Paula Payne Windows, did they provide a computer?<\/em><\/p>\n A: Yeah, I had a computer at the office. <\/em><\/p>\n Q: Did you ever use USB drives?<\/em><\/p>\n A: You mean like a thumb drive? <\/em>\u00a0<\/em><\/p>\n Q: Yes.<\/em>\u00a0<\/em><\/p>\n A: Sure, we used those all the time, like if I needed to take documents with me on a customer visit. <\/em><\/p>\n Q: Let me show you Plaintiff\u2019s Exhibit 13 to your deposition. That\u2019s a report our forensic expert prepared. Do you see that? <\/em><\/p>\n A: Yes. <\/em><\/p>\n Q: Do you see line 7 on page 2 that shows on April 7, 2023, the day after you gave notice, you plugged a Seagate thumb drive into your computer at work and copied 12 sales reports to it? <\/em>\u00a0<\/em><\/p>\n A: Yes. <\/em><\/p>\n WRONG! <\/strong><\/p>\n Dawn doesn\u2019t have any personal knowledge of the forensic report or how it was prepared. And her recollection is probably not that specific. How can she be sure?<\/p>\n Here\u2019s a better way for Dawn to answer:<\/p>\n Q: Do you see line 7 on page 2 that shows you copied 12 files on to a thumb drive? <\/em><\/p>\n A: I didn\u2019t prepare this report. <\/em>\u00a0<\/em><\/p>\n Q: Ok, but you see where it says that, right?<\/em><\/p>\n A: I see that the report says that. <\/em><\/p>\n Q: Well, are you denying that you copied 12 files on to that thumb drive on April 7, 2023? <\/em><\/p>\n A: I\u2019m not denying there were times when I put files on a thumb drive, but I can\u2019t remember if I copied those specific files on that specific date. <\/em>\u00a0<\/em><\/p>\n Q: Ok, but you can\u2019t rule it out? <\/em><\/p>\n A: I can\u2019t rule it in or out. I just don\u2019t remember. <\/em><\/p>\n Sticking to what you personally know is good deposition advice generally, but especially when it comes to computer forensics in a trade secrets lawsuit.<\/p>\n Let me stress: I am not<\/em> saying Dawn should pretend like she doesn\u2019t know or doesn\u2019t remember if she does\u00a0<\/em>remember. Every witness should tell the truth. If Dawn clearly remembers, \u201cyes, I copied 12 files on to a thumb drive on April 7, 2023,\u201d then she should say so.<\/p>\n But it\u2019s rare that the witness will remember that specifically.<\/p>\n In most cases, a witness in a deposition is not going to remember every little thing she did on a computer years earlier, before any lawsuit was filed. She certainly won\u2019t remember things like the serial number of the USB drive.<\/p>\n And that brings up the final common deposition mistake to avoid in a trade secrets lawsuit.<\/p>\n Maintaining your credibility is critically important in any lawsuit.<\/p>\n And if you\u2019re a former employee defendant in a trade secrets lawsuit, it is even more important than usual. Right off the bat your credibility is under attack because you did something your former employer portrays as sneaky and underhanded. \u201cTheft!\u201d they will cry.<\/p>\n And you should expect the plaintiff\u2019s lawyer will go into the deposition ready to set you up. It might go like this:<\/p>\n Q: Can you take a look at page 27 of the Paula Payne Windows Employee Handbook?<\/em><\/p>\n A: Ok, yes, I\u2019m there. <\/em><\/p>\n Q: It says \u201cEmployees must take care not to disseminate company documents outside the company, such as sending them to personal email addresses.\u201d Did I read that correctly?<\/em><\/p>\n A: Nobody ever paid attention to that. <\/em><\/p>\n Q: Ok, but that was the company\u2019s stated policy, correct?<\/em><\/p>\n A: Yeah, I guess. <\/em><\/p>\n Q: Ok, so you knew it was against company policy to email yourself company documents, right?<\/em><\/p>\n A: Right. <\/em><\/p>\n Q: Did you ever do that?<\/em><\/p>\n A: Absolutely not. I never emailed myself company documents. <\/em><\/p>\n WRONG! <\/strong><\/p>\n The answer is wrong because you already know what\u2019s coming next: Impeachment.<\/p>\n The lawyer for Paula Payne Windows will show Dawn a copy of an email from her company email account to her personal Gmail account attaching a proposal to a customer.<\/p>\n \u201cOh, I forgot about that!\u201d Dawn will say. \u201cI was going to meet with a customer out of the office the next day, and I needed to be able to print out the proposal at home.\u201d<\/p>\n A legitimate explanation, if true. But the damage will already be done.<\/p>\n So for questions like this, it\u2019s important to be cautious and not overstate your case.<\/p>\n In this example, there are basically three possibilities:<\/p>\n If 1 is true, then Dawn should say so.<\/p>\n If 2 is true, then Dawn should say something like \u201cI don\u2019t have a specific memory of doing that.\u201d Then she\u2019s leaving room for the possibility that it happened.<\/p>\n If 3 is true, then Dawn could<\/em> say she never emailed herself company documents, but even then, she should proceed with caution.<\/p>\n You see, memory is a funny thing. Every litigator has experienced a client who was 100% sure of some fact or sequence of events, and then the documents show her memory is just flat wrong.<\/p>\n So even if Dawn is absolutely sure, it\u2019s still a good idea to say something like \u201cI don\u2019t think I ever did that.\u201d<\/p>\n You don\u2019t need to overstate the good facts that are on your side.<\/p>\n On a scale of 1 to 14, 1 being lowest degree of likelihood, 14 being absolute metaphysical certitude, what are the chances you\u2019ll make a mistake?<\/p>\n Go ahead, say your answer.<\/p>\n WRONG! <\/strong><\/p>\n _______________________<\/p>\n Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\n These are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":" The McLaughlin Group There was a sketch on Saturday Night Live where Dana Carvey played news talk show host John McLaughlin. The recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout \u201cWRONG!\u201d I think about that a lot when I\u2019m doing […]<\/p>\n","protected":false},"author":1,"featured_media":64587,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[11514,35058,22414,13668,6075,9792],"dealstore":[],"offerexpiration":[],"class_list":["post-64586","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-common","tag-deposition","tag-litigation","tag-mistakes","tag-secrets","tag-trade"],"yoast_head":"\n2. Is a customer list a trade secret? <\/strong><\/h3>\n
3. Are the company\u2019s prices trade secrets?<\/strong><\/h3>\n
4. What does the forensics show?<\/strong><\/h3>\n
5. Undermining your credibility by overstating your case<\/strong><\/h3>\n
\n
<\/p>\n