Companies who must confront parallel civil and criminal trade secret proceedings face many vexing strategic issues. Jessica Nall and Christine Streatfeild, two members of Baker McKenzie's North America Trade Secrets Practice, offer their respective white collar and IP expertise to identify and advise on some of the most important topics in this context.

Overcome strategic challenges when managing parallel civil and criminal trade secret proceedings. These include (i) factors the government considers in initiating an investigation (ii) presenting the "trade secrets" to the government; (iii) whether to seek a stay of the civil proceeding and discovery implications of a stay, (iv) the length of a criminal proceeding; and (iv) the key differences in the way the government conducts its investigation verses discovery between parties in civil matters.

Key summary

  • Trade secrets theft can lead to both criminal and civil liability depending on the facts of the case.

  • Where the conduct rises to the level of criminal culpability, companies should consider the impact of a referral to criminal authorities as well as making recourse to civil remedies. If a criminal investigation is initiated, civil and criminal cases will proceed in parallel, presenting a unique set of challenges.

  • If a company finds itself facing such parallel proceedings, there are complex strategic tradeoffs to take into account, including whether to seek preliminary relief, how to proceed in seeking necessary discovery in light of pending criminal proceedings, and how to effectively coordinate and cooperate with prosecutors.

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