In a clash between two major oil companies, the Texas Supreme Court ruled May 20, 2016 that the recently enacted Texas Uniform Trade Secrets Act (“TUTSA”) allows the trial court discretion to exclude a company representative from portions of a temporary injunction hearing involving trade secret information. The Court further held a party has no absolute constitutional due-process right to have a designated representative present at the hearing.
A former employee of M-I L.L.C. (“M-I”), a Schlumberger subsidiary, left to work for National Oilfield Varco (NOV) in early 2014. The employee then filed suit against in April 2014, seeking a declaratory judgment on his non-compete agreement. M-I counterclaimed for breach of contract and misappropriation of trade secrets and further sued NOV as a defendant.
At a temporary injunction where M-I sought to present evidence through oral testimony of its purported trade secrets, M-I asked the trial court to exclude from the courtroom NOV’s designated representative. The trial court categorically denied this request, concluding that it would be a denial of due process to prohibit the representative from attending. The Court of Appeals then denied M-I’s writ of mandamus.
The Texas Supreme Court held, however, that the trial court failed to conduct the necessary due-process analysis balancing NOV’s right to have its representative attend the hearing and M-I’s right to protect its trade secrets from someone who could have been a competitive decision-maker at NOV. Specifically, the Court held that the balancing test required the trial court to determine, e.g.,
- the degree of competitive harm M-I would have suffered from the dissemination of its alleged trade secrets to NOV’s representative; and
- the degree to which NOV’s defense of M-I’s claims would be impaired by the representative’s exclusion.
This analysis may ultimately result in permitting NOV’s representative to attend the hearing, the Court stated, but the failure of the trial court to conduct any such analysis constituted an abuse of discretion.
The Court further concluded that TUTSA allows a trial court to exclude a company representative from portions of the hearing where trade secrets are being discussed. Specifically, the Court held the provision of the statute allowing for “in camera hearings” should be interpreted as proceedings where a party or its representatives may be excluded, such as the injunction hearing at issue. Tex. Civ. Prac. & Rem. Code §134A.006. This interpretation, the Court concluded, was appropriate because “it best gives effect to [TUTSA’s] directive to take reasonable measures to protect trade secrets, and its express authorization for protective orders with provisions ‘limiting access to confidential information to only the attorneys and their experts.’”
Interestingly, the Court also noted that when conducting the balancing due-process test regarding NOV’s corporate representative, the trial court must consider that “even when acting in good faith, [the representative] could not resist acting on what he may learn.” In support of this position, the Court cited to a federal case from the Court of Appeals for the D.C. Circuit which held that “it is very hard for the human mind to compartmentalize and selectively suppress information once learned, no matter how well-intentioned the effort may be to do so.” FTC v. Exxon Corp., 636 F.2d 1336, 1350 (D.C. Cir. 1980). This analysis appears to lend support to interpreting TUTSA to adopting in some form the “inevitable disclosure” doctrine, which has not been otherwise officially recognized in Texas. This doctrine generally holds that a former employer is entitled to enjoin a former employee if the new employment would result in “inevitable disclosure” of confidential information.
TUTSA became effective in Texas on September 1, 2013.