It sucks being sued. Especially if it’s for theft of trade secrets. Because it could be holding up your entire career, your life—a past employer trying to stop you from moving on.

You gotta hope that you can end the suit quickly. 

And here's ammo to do it: Openwave Messaging v. Open-Xchange.

Openwave gives you two big wins. It forces plaintiffs to disclose their trade secrets early. And it grants early summary judgment in favor of the defendant.

Disclosing Trade Secrets 

California Code of Civil Procedure § 2019.210 is a state law requiring that a plaintiff adequately disclose its allegedly stolen trade secrets before it can conduct discovery. 

But it’s a state law. And courts differ on whether it applies in federal court.

Add Openwave to the list of decisions that apply the law in federal court.

The court then recognized that a Section 2019.210 disclosure requires four things: a summary, background on its value, a description of the efforts to maintain its secrets, and the precise claimed trade secret.

Ultimately, it found the plaintiff’s trade secret disclosure met this requirement.

Summary Judgment

The meat of Openwave is its analysis of the defendant's summary judgment motion.

Right off the bat, the court states a key point: the plaintiff's trade secret disclosure is now essentially irrelevant. It doesn’t matter that the plaintiff satisfied Section 2019.210.

What matters is whether it can provide evidence to meet (or defeat) the summary judgment standard.

The defendant’s summary judgment motion focused on two issues: were there any trades secrets, and were they misappropriated.

Any trade secrets?

The plaintiff claimed trade secrets in three things: customers, technical data, and technology stacks.

The court held the first two were not trade secrets. Sure, they could be trade secrets. There are cases saying that.

But the plaintiff didn't provide any admissible evidence showing this. Showing how the information met the definition of trade secrets. So there was no basis for concluding that this information could be trade secrets. And the court granted the defendant's summary judgment motion on these.

As for the technology stacks, the court found it could be a trade secret based upon a declaration saying that it's treated confidentiality and would be valuable to the defendant because of its resiliency.

Misappropriated?

But were the technology stacks misappropriated?

The plaintiff didn't submit any evidence showing they were. At most, it arguably showed that the defendant took a USB drive containing the plaintiff’s data.

Yet it didn't show what was on the USB drive. The technology stacks? Or something else?

It could be either. And that's not enough to meet the plaintiff’s burden of providing evidence of misappropriation.

The plaintiff also provided evidence from its own witness, who testified that “the speed in which [the defendant] was able to get its platform up . . . was impossible” without misappropriation. The plaintiff then argued that this leads to an inference of misappropriation. 

The court didn’t bite. This isn't evidence. This is speculation and argument. 

Without any evidence showing that the defendant actually possessed the technology stacks, the court granted the defendant's summary judgment motion.