5th Circuit wants to know: ‘Where’s the trade secret?’

Remember the fast-food commercial from the 1980s? The tag line criticized a competitor with an irate customer looking at their puny burger and asking, “Where’s the beef?” I thought about this ad after reading a new case from the U.S. 5th Circuit Court of Appeals, our federal court of appeals in Texas.

Exec leaves for competitor

Justin Pethick worked for DeWolff, Boberg & Associates (DB&A), a consulting company in Dallas. He jumped ship to go to work for a competing consulting company, the Randall Powers Company. DB&A was none too pleased and sued him and his new employer for misappropriation of trade secrets.

Here, DB&A claimed the trade secrets consisted of information it had collected from three of its clients on their needs and preferences. And this is, in fact, confidential information because it isn’t something that is generally known to the public and gives a competitive advantage to DB&A.

So what, now what?

The trial court tossed the case on summary judgment (pretrial dismissal), and the 5th Circuit upheld the ruling. Here’s why.

First, DB&A never identified to the court the actual documents it considered confidential. Yes, it identified the types of information it considered confidential, but it didn’t label the actual documents reflecting this information for the court. Here’s a peeved court: