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TRO to stop broadcast that could reveal trade secrets denied, part 1

On Oct. 2, the U.S. District Court for the Central District of California refused to grant a temporary restraining order (TRO) that would have stopped broadcast two days later of a new Discovery Channel documentary, the content of which was based on what plaintiffs allege were misappropriated trade secrets.

The judge’s analysis in Spolar v. Discovery Communications, LLC, sheds light on some important concepts in trade secret litigation.

TROs can protect trade secrets

When a business believes that someone has wrongly obtained its trade secrets, one key legal maneuver in trade secret litigation to maintain the confidentiality of the secrets is to request a TRO, which is a court order that would require the defendant not to reveal the trade secrets publicly pending next steps in the litigation. This injunctive relief would protect the alleged trade secrets from being revealed in the competing marketplace – potentially causing irreparable harm to the trade secret owner – while the dispute is litigated.

The Lincoln image

In the Spolar case, the two plaintiffs allege that they spent 25 years working to authenticate an old glass photograph they owned of Abraham Lincoln on his deathbed. The authentication process included consultations with many experts in an array of specialties, all of whom had to sign nondisclosure agreements to keep the project secret.

After deciding that the photo was authentic, the plaintiffs met with some parties who could help them make a documentary. Before sharing their confidential information, the plaintiffs required that everyone sign nondisclosure agreements.

These parties decided not to take on the documentary project, but one of the people – Whitny Brown – who heard their pitch allegedly reached out to some of the plaintiffs’ experts and began to develop a show with Discovery about the plaintiffs’ Lincoln picture. She was to be the host and allegedly claimed falsely that she was the person who had authenticated the picture. Plaintiffs sent cease-and-desist letters to W. Braun and her production company, copying Discovery (which had not signed a nondisclosure agreement), demanding that they stop using the plaintiffs’ trade secrets in violation of the nondisclosure agreements.

Trade secret misappropriation lawsuit

On Sept. 14, 2020, plaintiffs said they learned about a documentary on the Lincoln photograph scheduled for broadcast Oct. 4 on Discovery. With no time to lose, they asked the court for a TRO to block the broadcast and give them time to review the film to determine whether it revealed trade secrets. They also brought claims for misappropriation under the federal Defend Trade Secrets Act (DTSA), breach of contract and violation of California unfair competition law.

In part 2 of this post, we will talk about why the court denied the TRO and refused to block the film’s broadcast.