PROTECTING TRADE SECRETS AND CONFIDENTIAL MATTER FROM DISCLOSURE IN A DIVORCE OR FAMILY LAW CASE

Donald F. Conviser, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, serving divorce and family law clients for over 35 years in the Courts of Los Angeles and Ventura County, offering a free confidential consultation at (818) 880-8990 regarding your divorce or family law case, writes today about protecting trade secrets sought by the adverse counsel in family law discovery.

I apologize for the gap in my blogs, but my heavy litigation schedule over the last couple of weeks mandated priority for my clients and cases, leaving time only to sleep or write blogs, and I opted for sleep to best serve my clients.

The provisions of the Civil Discovery Act are set forth at California Code of Civil Procedure section 2016.010, et seq. [et sequitur - meaning "and the following provisions"]. Code of Civil Procedure section [CCP§] 2017.010 provides that unless otherwise limited by order of the court in accordance with this title [emphasis added], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence [emphasis again added]. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.

That definition is far from exhaustive: discovery can be propounded as to any matter claimed by a party which "may tend to lead to the discovery of admissible evidence", even if the matter itself isn't admissible.

Discovery in divorce and family law cases can be sought in the form of Depositions [oral depositions before a court reporter, audiotaped and/or videotaped as well if so addressed in the Deposition Notice -CCP§ 2025.010, et seq.], Interrogatories [CCP§2030.010, et seq. - written questions that the responding party must answer in writing under penalty of perjury], Requests for Admissions [CCP§2033.010, et seq. - written requests that a party admit the truth of matters and/or admit the genuineness of documents], Requests for Physical or Mental Examination [CCP§2032.010, et seq. - requiring that a party submit to such examination], and Requests for production and inspection of documents, tangible things, land, and other property [CCP§2031.010, et seq. - which I will hereafter refer to as an "Inspection Demand" demanding such production and inspection].

However, on appropriate and timely Motion filed and served after endeavoring to meet and confer with the party seeking discovery, CCP§2017.020 provides that the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The Court may make this determination pursuant to a motion for protective order by a party or other affected person, which motion must be accompanied by a meet and confer declaration under CCP§2016.040 stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

Diligence is required in endeavoring to meet and confer, and the Motion for Protective Order must be "promptly" filed and served, as is required under CCP§2025.420(a) [regarding a Deposition], CCP§2030.090 [regarding Interrogatories], CCP§2031.060 [regarding Inspection Demands], [there seems to be no specific codified Motion for Protective Order against a Demand for Physical or Mental Examination], and CCP§2033.080 [regarding Requests for Admission].

If discovery is propounded seeking disclosure of confidential information or documents, such as trade secrets, the party from whom that disclosure is sought (or his/her attorney if represented) should immediately contact adverse counsel and meet and confer in an effort to come to agreement that the confidential information or documents shall not need to be disclosed or produced, or to come to agreement that the disclosure shall be restricted to the attorney receiving those documents and that the information and documents shall not be used for any purpose other than to address matters in the litigation, and shall be disclosed to nobody else and used for no other purpose.

The agreement of counsel should be done by way of STIPULATION AND ORDER, signed by both parties and their counsel and submitted to the Court for its ORDER pursuant to that STIPULATION. Because of the brevity of this article, I am not including all the details that should be set forth in that STIPULATION AND ORDER, but I am letting my readers know that the meet and confer effort needs to be commenced immediately upon the receipt of the discovery, and that the STIPULATION AND ORDER needs to be artfully drafted to restrict the use of the disclosed material and information to the attorney, with some punitive provisions in the event that it is disclosed and/or used beyond the restricted use. I may address in a future blog some provisions that I have included in STIPULATIONS for Protective Orders, but even then, I will not be disclosing those provisions as "legal advice" to my readers, but instead, I will disclose those provisions to demonstrate the thought processes that I go through when I am negotiating provisions to protect my clients against unauthorized disclosure.

In summary, this article addresses the breadth of discovery allowable in California, as well as the requirements of diligent meet-and-confer and prompt filing and service of a Motion for Protective Order to oppose discovery seeking disclosure of confidential information and/or trade secrets, and it briefly addresses the process of endeavoring to reach agreement to restrict use of trade secrets sought to be disclosed in discovery, and such agreement MUST be done in the form of a Stipulation and Order to provide protection, as well as consequences and remedies for unauthorized disclosure by the receiving attorney or party.

I'm looking forward to writing about provisions which might be used in a Stipulation and Order for Protective Order, which I hope to have time to do this coming week. Call me at 818/880-8990 if you have any question or issue concerning your need for protection of trade secrets or other confidential information in a Divorce or Family Law matter.