The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid

Dr. Friedrich Klinkert, Klinkert Zindel Partner, Frankfurt am Main

Enterprises increasingly rely on intangible or knowledge-based assets rather than tangible or physical ones. While the information economy has made trade secrets more important, it has also made them more likely to be stolen. How can trade secrets effectively be protected? What are the advantages and disadvantages of trade secrets protection in comparison to patent protection? What is the decisive statutory framework in Germany? What do respective European or international provisions state? In practice, trade secrets owners often face substantial problems concerning their burden of proof when it comes to the enforcement of their claims. In particular, the fact that German law requires the plaintiff to specifically identify relevant evidence frequently excludes the party’s ability to develop the case. Therefore, plaintiffs often seek discovery in other countries if feasible. U.S. discovery aid under 28 U.S.C. § 1782(a) has proven to be helpful in particular. This is illustrated by a practical case that also deals with the question of whether and how U.S. discovery results can be used in a German trial.