A recent federal decision from Connecticut confirms the notion that information knowingly posted on the Internet by its owner cannot constitute a protectable trade secret.
On April 1, 2011, April Fools' Day, a human relations consulting firm SharedXpertise allegedly disseminated by email and on its website a false statement that it had acquired its competitor LRP Publications. Kutik, a consultant for LRP, was offended. He promptly sued SharedXpertise in the Connecticut federal court and alleged unfair competition, violation of the Connecticut Unfair Trade Practices Act, and other causes of action. He claimed that as a result of the press release, potential vendors and attendees signed up for SharedXpertise’s May 2011 conference instead of LRP’s competing event scheduled for October 2011.
Kutik served interrogatories and a request for production which would have had the effect of requiring SharedXpertise to identify the sponsors and providers for the May event. SharedXpertise objected and sought a protective order permitting the information to be produced for “attorneys eyes only” because, supposedly, it constituted confidential trade secrets. According to SharedXpertise, the only legitimate use of the information was to facilitate a comparison of the names on the list with the names of persons and entities expected to attend, but not attending, the October conference, and the attorneys could make this comparison. Kutek disputed the claim that SharedXpertise closely guarded its customer list, pointing out that the requested information was prominently displayed on SharedXpertise’s website, and an attendance list was handed out at the conference. Further, he said that his own analysis of the information, based on 22 years in the industry, would be more efficient than his counsel’s review alone.
Magistrate Judge Margolis issued a compromise ruling. She ordered SharedXpertise to produce without an “attorneys’ eyes only” restriction information “readily available on defendant’s website,” but she permitted SharedXpertise to limit to Kutek’s attorneys access to names “not openly identified through resort to defendant’s website” Kutik v. SharedXpertise Media, LLC, 2012 WL 1435288 (D.Conn. 2012). The court's ruling confirms that although an entire list of customers may not constitute a trade secret, a portion or sub-set of the list that is not publicly available may qualify for trade secret protection.