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WPI 351.08 Reasonable Efforts to Maintain Secrecy—Definition

6A WAPRAC WPI 351.08Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 351.08 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVIII. Commercial Litigation

Chapter 351. Trade Secrets

WPI 351.08 Reasonable Efforts to Maintain Secrecy—Definition

In determining whether information is “the subject of efforts that are reasonable under the circumstances to maintain its secrecy,” you may consider, among other factors, the following:

(1) The extent to which the information is known outside the plaintiff's business;

(2) The extent to which employees and others in the plaintiff's business know the information;

(3) The nature and extent of the measures the plaintiff took to guard the secrecy of the information;

(4) The existence or absence of an express agreement restricting disclosure; and

(5) The extent to which the circumstances under which the information was disclosed to others indicate that further disclosure without the plaintiff's consent was prohibited.

NOTE ON USE

This instruction should be used with WPI 351.02 (Trade Secret—Definition) in those instances when the reasonableness of the plaintiff's efforts to maintain the secrecy of the alleged trade secret is at issue.

In particular cases, the word “business” will need to be modified to a more appropriate term, such as “occupation” or “field.”

COMMENT

For information to qualify as a trade secret, the information must be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” See RCW 19.108.010(4)(b); Robbins, Geller, Rudman & Dowd, LLP v. State, 179 Wn.App. 711, 328 P.3d 905 (2014).

In determining whether information is the subject of reasonable efforts to maintain its secrecy, other courts have identified the following factors that a court may examine:

(1) the extent to which the information is known outside the plaintiff's business; (2) the extent to which employees and others involved in the plaintiff's business know the information; (3) the nature and extent of measures the plaintiff took to guard the secrecy of the information; (4) the existence or absence of an express agreement restricting disclosure; and (5) the circumstances under which the information was disclosed …, to the extent that the circumstances give rise to a reasonable inference that further disclosure without the plaintiff's consent is prohibited.

Spottiswoode v. Levine, 1999 ME 79, ¶ 27 n.7, 730 A.2d 166, 175 n.7.

For another phrasing of factors to consider, see Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.3.2, p. 401 (4th ed. 2005).

[Current as of December 2020.]

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