Striking a Balance: When should trade-secret law shield disclosures to the government?

Iowa Law Review

Volumn 96, Issue 3, 2011, Pages 791-835

  Rowe, Elizabeth A ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 79953310363     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (380)

1. Peter Valdes-Dapena, Toyota Recalls Total 8. i Million Vehicles, CNNMONEY.COM, Feb. 4, 2010, http://money.cnn.com/20 io/o2/o4/autos/toyota- recall-total/index.htm?postversion= 2010020410. Among the models recalled were Camry, Avalon, Prius, and several Lexus models.
2. Hibah Yousuf, Toyota: 3.8 Million Cars with Risky Floor Mats, CNNMONEY.COM, Oct. 2, 2010, http://money.cnn.com/2009/09/29/news/companies/ toyota-lexus-floor-mats/.
3. U.S. Launches Criminal Probe into Toyota Safety, MSNBC.COM, Feb. 22, 2010, http://www. msnbc.msn.com/id/35520628/ns/business-autos.
4. Curt Anderson & Danny Robbins, AP IMPACT: Toyota Secretive on 'Black Box' Data, ABCNEWS.COM, Mar. 4, 2010, http://abcnews.go.com/Technology/ wireStory?id=iooi246i
5. At the time of this writing, it is unclear precisely what information is contained in the Toyota black box. It is believed that the data contained in these boxes include data from five seconds before until two seconds after an air bag is deployed in a crash, such as speed, the accelerator's angle, gear-shift position, whether the seat belt was used and the angle of the driver's seat, the brake's position, and the antilock brake system
6. Id.
7. Id.
8. While based on real events, this hypothetical is fictitious and created to help illustrate the problem addressed in this Article. However, in the real world, Toyota has generally been secretive about its black box data.
9. Id.
10. It did recently agree, however, to make some readers to its black boxes available to the government to aid in the recall investigation
11. Stephen Manning & Tom Raum, U.S. May Require Brakes That Can Override Gas Pedals in New Cars, USATODAY.COM, Mar. 2, 2010, http://www.usatoday.com/ money/autos/2010-03-02-toyotadeaths-N.htm.
12. See, e.g., Mary L. Lyndon, Secrecy and Innovation in Tort Law and Regulation, 23 N.M. L. REV. 1, 2-3 (1993) ("Proprietary claims to information impose substantial costs on regulation and hinder such regulatory initiatives as waste reduction.").
13. Companies are often statutorily required to produce information to the government for regulatory reasons to obtain approvals for their products or services. Accordingly, even if die information consists of protectable trade secrets, it must be produced unless they wish to forego the opportunity to conduct that aspect of their business in the United States
14. See, e.g., 7 U.S.C. § 1363(c)(1)(D) (2006) (providing that to sell or distribute a pesticide in die United States, a manufacturer must register it widi die EPA and include die complete formula of the pesdcide). At oUier times, such as in die Toyota hypothetical, die government requests information diat a company is not statutorily required to submit to the government. While companies may raise objections to submitting trade secrets, even where required, it is the latter set of circumstances mat is die focus of this Article
15. See infra text accompanying notes 169-71
16. Many of these kinds of cases are likely to arise in die context of administrative subpoenas
17. See, e.g., U.S. Int'l Trade Comm'n v. Tenneco W., 822 F.2d 73, 76 (D.C. Cir. 1987)
18. FTC v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 969 (D.C. Cir. 1980)
19. EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601,603 (S.D. Ind. 2001)
20. See, e.g., U.S. Int'l Trade Comm'n v. Tenneco W., 822 F.2d 73, 76 (D.C. Cir. 1987)
21. FTC v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 969 (D.C. Cir. 1980)
22. EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601,603 (S.D. Ind. 2001)
23. For example, Philip Goldstein, a cofounder of die hedge fund Bulldog Investors, refused to disclose to the SEC certain security positions held by die fund and dieir values. He argued diat disclosure would reveal trade secrets to competitors: namely his trading strategies.
24. See Hedge Funds Take on SEC over Disclosure Requirements, CNBC, May 17, 2007, http://www.cnbc. com/id/1872 2751.
25. Interestingly, the Federal Reserve Board refused to disclose information identifying the financial companies to which it made loans under the government's $2 trillion loan bailout program. It argued that such information was protected under the Freedom of Information Act's (TOLA") trade-secret and confidential-information exemption. David Glovin & Bob Van Voris, Federal Reserve Must Disclose Bank Bailout Records (Update 5), BLOOMBERG BUSINESSWEEK, Mar. 19, 2010, http://www.businessweek.com/news/2010-03-19/ federal-reserve-must-disclose-bank-bailout-records-updatei-.html. A federal appellate court did not agree. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010), petition for cert, filed, 79 U.S.L.W. 3271 (U.S. Oct. 26, 2010) (No. 10-543).
26. For instance, the State of New York requested that Bank of America disclose information about bonuses it paid to Merrill Lynch employees before Bank of America acquired Merrill Lynch. Bank of America objected to producing the information claiming that such compensation figures were a trade secret. The State argued that because Bank of America received $45 billion from the government, it needed to divulge the information. "Taxpayers demand and deserve transparency," die New York Attorney General Andrew Cuomo argued. BofA Must Disclose Merrill Payout, SAN JOSE MERCURY NEWS, Mar. 19, 2009, at 3C (internal quotation marks omitted). A state court judge ruled against Bank of America. See People v. Thain, 874 N.Y.S.2d 896 (Sup. Ct. 2009).
27. See, e.g., Letter from Andrew J. Emmett, Dir. for Sci. & Regulatory Affairs, Biotechnology Indus. Org. (BIO), to FDA (Aug. 5, 20og), http://www.bio.org/reg/20090805. pdf (discussing President Obama's Transparency and Open Government initiative and the FDA task force).
28. Gardiner Harris, Drug Agency May Reveal More Data on Actions, N.Y. TIMES, June 2, 2009, at A10. Company information treated as trade secrets before die FDA can include company plans to test experimental medicines, die complete results of most clinical trials, and the FDA's reasons for rejecting a company's application to market a product.
29. Id.
30. Results of clinical trials for a drug diat failed to win FDA approval are also secret. Jeanne Lenzer, Drug Secrets: What the FDA Isn't Telling, SLATE MED. EXAM'R (Sept. 27, 2005, 6:38 AM), http://slate.com/id/212691 8/ (discussing situation where a nineteen-year-old clinical-trial volunteer committed suicide in testing of antidepressant drug).
31. Id.
32. Harris, supra note 14. For example, a popular diabetes drug made by GlaxoSmithKline, Avandia, was found to increase the risk of heart attack by forty-two percent, but diat information was kept secret by the FDA.
33. Id.
34. 15 U.S.C. §§ 2601-2692 (2006).
35. Elana Schor, Obama Admin Steps Up Pressure To Ratify Treaties on Toxics, N.Y. TIMES, Sept. 24, 2010, http://www.nytimes.com/gwire/201 o/o9/24/24greenwire-obama-admin-steps-up-pressure-to-ratify-treati-73636.html.
36. Lyndsey Layton, Law Allows Companies To Hide Risks of Chemicals, WASH. POST, Jan. 4, 2010, atAi.
37. Id.
38. See, e.g., Elizabeth A. Rowe, Patents, Genetically Modified Food, and IP Overreaching, 64 SMU L. REV. (forthcoming Mar. 2011) (arguing that patent law's support of research restrictions on genetically modified foods threatens public health and is against the public interest).
39. See discussion infra Part II.C.
40. Accordingly, this Article is not directly concerned with other scenarios, such as the disclosure of trade secrets between parties in litigation or cases where companies have entered into a business relationship with the government, such as with vendors or contractors for government services. These scenarios have been appropriately addressed elsewhere
41. See, e.g., David S. Levine, Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure, 59 FLA. L. REV. 135 (2007) (arguing that companies providing services for public infrastructure should disclose trade secrets for access and transparency).
42. U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.
43. See generally Elizabeth A. Rowe, Trade Secret Litigation and Free Speech: Is It Time To Restrain the Plaintiffs?, 50 B.C. L. REV. 1425, 1447 (2009) (discussing the substantive requirements for establishing that business information is a protectable trade secret).
44. UNIF. TRADE SECRETS ACT § 1(4)0) (amended 1985), 14U.LA538 (2005).
45. There are federal criminal statutes that address espionage and the inappropriate disclosure of trade secrets by a federal employee. These are the Economic Espionage Act, 18 U.S.C. § 1831-1839 (2006), and die Trade Secrets Act, 18 U.S.C. § 1905 (2006). However, the bodies of civil law are state based.
46. See MICHAEL A. EPSTEIN, EPSTEIN ON INTELLECTUAL PROPERTY § 1.02, at 1-4 (5th ed. 2006). The Restatement (Third) of Unfair Competition now also governs trade secrets, and its rules apply to actions under both the UTSA and the Restatement of Torts.
47. See RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 reporters' note (1995).
48. RESTATEMENT (THIRD) OF UNFAIR COMPETITION §§ 39-45.
49. This is an interesting shift in the overall treatment of this area of die law, which corresponds with die growing union of trade-secret and unfair-competition issues becoming evident in die case law. For instance, unfair-competition claims involving trade secrets often mirror trade-secret-misappropriation claims.
50. See, e.g., GlobeSpan, Inc. v. O'Neill, 151 F. Supp. 2d 1229, 1235-36 (CD. Cal. 2001)
51. IBM, Corp. v. Seagate Tech., Inc., No. Civ. 3-91-630, 1991 WL 757821, at *4 (D. Minn. Dec. 31, 1991).
52. See RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 reporters' note.
53. The UTSA defines a trade secret as: [I]nformation, including a formula, pattern, compilation, program, device, method, technique or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. UNIF. TRADE SECRETS ACT § 1 (4) (amended 1985), 14 U.L.A. 538 (2005). The UTSA requires only reasonable efforts-not all conceivable efforts-to protect the confidentiality of trade secrets.
54. See Surgidev Corp. v. Eye Tech., Inc., 828 F.2d 452, 455 (8th Cir. 1987)
55. see also Religious Tech. Ctr. v. Netcom On-line Commc'n Servs. Inc., 923 F. Supp. 1231, 1253-54 (N.D. Cal. 1995) (stating that the Church of Scientology made reasonable efforts under UTSA to protect the secrecy of religious documents through the use of locked cabinets and safes, logging and identification of materials, electronic sensors, alarms, photo identifications, security personnel, and confidentiality agreements for all given access to materials). 32.
56. See EPSTEIN, supra note 27, § 1.02, at 1-4. The Restatement of Torts defines a trade secret as "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." RESTATEMENT OF TORTS § 757 cmt. b (1939). The Restatement then provides examples, stating that a trade secret "may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers."
57. Id.
58. UNIF. TRADE SECRETS ACT § 1 (4). The UTSA requires reasonable efforts to protect the confidentiality of trade secrets.
59. Surgidev, 828 F.2d at 455.
60. McFarland v. Brier, No. CA. 96-1007, 1998 WL 269223, at
61. 3 (R.I. Super. Ct. May 13, 1998), vacated, 769 A.2d 605 (R.I. 2001).
62. PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1265-70 (7th Cir. 1995) (finding strategic financial and marketing information to be protected trade secrets under the UTSA)
63. ConAgra, Inc. v. Tyson Foods, Inc., 30 S.W.3d 725, 728-30 (Ark. 2000) (recognizing that Tyson's business information concerning production, marketing strategies, pricing programs, and contract terms are protectable trade secrets under the UTSA, but refusing to grant such protection for failure to maintain their secrecy).
64. A negative trade secret is the knowledge of what not to do or what does not work-a lesson learned from a certain process or research and development effort that failed. See JAMES POOLEY, TRADE SECRETS §4.02 [3] (1997).
65. See 1 ROGER M. MILGRIM, MILGRIM ON TRADE SECRETS § 1.01 [2] [a] (2008) (discussing the UTSA).
66. See Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 STAN. L. REV. 311, 324-26 (2008). 3g. FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir. 1984).
67. See generally Elizabeth A. Rowe, Saving Trade Secret Disclosures on the Internet Through Sequential Preservation, 42 WAKE FOREST L. REV. 1, 14-17 (2007) (discussing how a third party may not be guilty of stealing a trade secret if die information was not a trade secret at the time he or she acquired it).
68. See RESTATEMENT OF TORTS § 757 cmt. a (1939).
69. SeeKewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974); Fisher Stoves, Inc. v. All Nighter Stove Works, Inc., 626 F.2d 193, 196 (1st Cir. 1980) ("[E]ven a bona fide trade secret is not protected against discovery by fair means, including accidental disclosure.").
70. See Lockridge v. Tweco Prods., Inc., 497 P.2d 131, 134 (Kan. 1972) ("Once the secret is published to the 'whole world,'... it loses its protected status and becomes available to others for use and copying widiout fear of legal reprisal from die original possessor." (quoting Underwater Storage, Inc. v. U.S. Rubber Co., 371 F.2d 950, 954 (D.C. Cir. 1966)).
71. See Wearly v. FTC, 462 F. Supp. 589, 599-600 (D.N.J. 1978), vacated, 616 F.ad 662, 663 (3d Cir. 1980) (holding that the matter was not "ripe" for judicial review).
72. Sovereign immunity does not bar the filing of a trade-secret claim against the government for disclosure of trade secrets. Jerome Stevens Pharm., Inc. v. FDA, 402 F-3d 1249, 1256 (D.C. Cir. 2005).
73. The Trade Secrets Act provides that: Whoever, being an officer or employee of the United States or of any department or agency thereof⋯ publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to die trade secrets,⋯ shall be fined under this tide, or imprisoned not more dian one year, or both; and shall be removed from office or employment. 18U.S.C. § 1905(2006).
74. Id.
75. While the Trade Secrets Act does not furnish a private cause of action to enjoin government disclosure, a violation of the Act may be decisive in a judicial review of agency action under die Administrative Procedure Act ("APA")
76. Chrysler Corp. v. Brown, 441 U.S. 281,316-18 (1979).
77. 18U.S.C. § 1905.
78. See, e.g., Mark Q. Connelly, Secrets and Smokescreens: A Legal and Economic Analysis of Government Disclosures of Business Data, 1981 Wis. L. REV. 207, 242.
79. See U.S. CONST, amend V.
80. See John C. Janka, Comment, Federal Disclosure Statutes and the Fifth Amendment: The New Status of Trade Secrets, 54 U. CHI. L. REV. 334, 338-39, 343-44 (1987) (discussing Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), and public use).
81. Wearly v. FTC, 462 F. Supp. 589, 598 (D.NJ. 1978), vacated, 616 F.2d 662 (3d Cir. 1980).
82. 467 U.S. at 1020
83. see also Philip Morris, Inc. v. Reilly, 312 F.3d 24, 45-46 (1st Cir. 2002) (citing Monsanto to conclude that a Massachusetts statute effected a taking of tobacco companies' trade secrets).
84. 467 U.S. at ion.
85. Id. at 1008.
86. Id. at 1008-09.
87. Id. at 1010.
88. Id. at 1008-09.
89. See id. at 1022 (O'Connor, J., concurring in part and dissenting in part) (stating that she was "frankly puzzled" by the majority's premise that "die degree of Government regulation determines die reasonableness of an expectation of confidentiality").
90. See 3 MlLGRIM, supra note 37, § 12.04 (lisdng statutes prohibiting disclosure of trade secrets or confidential information by die FTC, SEC, IRS, FDA, FAA, Social Security Administration, and odiers).
91. See V.S. Int'l Trade Comm'n v. Tenneco W" 822 F.2d 73, 80 (D.C. Cir. 1987). To the extent the government was planning to use trade-secret information submitted by a company to prosecute die company, it may implicate anodier right under die Fifth Amendment-the right against self-incrimination. The right not to be compelled to testify against oneself when die testimony may tend to incriminate die witness is a central tenet of criminal procedure.
92. See United States v. Hubbell, 167 F.3d 552, 575 (D.C. Cir. 1999) (discussing Fifth Amendment protections in die context of producing documents to die government), ajfd, 530 U.S. 27 (2000). However, diat discussion is beyond die scope of diis Article
93. Scejanka, supra note 51, at 338-39.
94. See Christopher S. Rubager, Error by FTC Reveals Whole Foods' Trade Secrets, WASH. POST, Aug. 15, 2007, atD3.
95. Plaintiff's Memorandum in Opposition to Defendant Whole Food Market, Inc.'s Morion for Entry of a Final Protective Order at 7, FTC v. Whole Foods Mkt., Inc., 502 F. Supp. 2d 1 (D.D.C. 2007) (No. 07-CV-01021-PLF), available at http://www.ftc.gov/os/caselist/071011 4/o7o62oresponse.pdf, rev'd, 548 F.3d 1028 (D.C. Cir. 2008).
96. See discussion infra accompanying notes 222-23.
97. 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.
98. Each of the states have statutes similar to FOIA. See, e.g., Burt A. Braverman & Wesley R. Heppler, A Practical Review of State Open Records Laws, 49 GEO. WASH. L. REV. 720 (1981)
99. Andrea G. Nadel, Annotation, What Constitutes "Trade Secrets" Exempt from Disclosure Under State Freedom of Information Act, 27 A.L.R. 4TH 773 (1984). While this Article will only address the federal law, the proposal in this framework could apply to disclosure of trade secrets on the state level as well. See discussion infra Part IV.B.
100. Wearly v. FTC, 462 F. Supp. 589, 600 (D.N.J. 1978), vacated, 616 F.2d 662 (3d Cir. 1980).
101. Michael Moss, Public Eye: Federal Service Gels Wider Use by Sleuths, Snoops-and Senators, WALL ST. J., Jan. 3, 1996, at Ai (quoting one source as estimating that seventy-five percent of all FOIA requests come from businesses).
102. See supra Part II.B.
103. 5U.S.C.§552(b)(3)-(4).
104. Chrysler Corp. v. Brown, 441 U.S. 281, 292-94 (1979).
105. Nevertheless, one must first determine whether that material falls within one of the applicable exemptions to then decide whether that information can be withheld by the government as falling outside of FOIA.
106. 5 U.S.C.§ 552(b)(3).
107. § 552(b)(4).
108. Id.
109. It is questionable when and whedier Exemption 3 applies to protect trade secrets, mostly because courts differ on whether there is a statute that specifically exempts trade secrets from disclosure within the meaning of Exemption 3. Compare Chrysler Corp., 441 U.S. at 300 n.29 (citing Adm'r v. Robertson, 442 U.S. 255, 264-65 (1975), superseded by statute, Government in the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (1976)), and Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1199-203 (4th Cir. 1976) (Finding the Trade Secrets Act to be an Exemption 3 withholding statute), abrogated by Gen. Motors Corp. v. Marshall, 654 F.2d 294 (4th Cir. 1981), with Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 948-49 (10th Cir. 1990) (finding the Trade Secrets Act is not an Exemption 3 withholding statute), and Gen. Elec. Co. v. U.S. Nuclear Regulatory Comm'n, 750 F.2d 1394, 1401-02 (7th Cir. 1984).
110. 5 U.S.C. § 552(d) ("This section is not authority to withhold information from Congress.").
111. 79 Article I, Section 6 of the U.S. Constitution grants an absolute privilege to members of Congress for any remarks made as part of an official proceeding in the Senate or die House, regardless of any harm it may cause, unless it amounts to a criminal act. ROY L. MOORE & MICHAEL D.MURRAY, MEDIA LAW AND ETHICS 414-15 (3ded. 2008).
112. See, e.g., Wearly v. FTC, 462 F. Supp. 589, 600 (D.N.J. 1978) (discussing incident involving Senator Joseph McCarthy), vacated, 616 F.2d 662 (3d Cir. 1980).
113. The DOJ has provided a guide to FOIA in which it discusses what is a trade secret. U.S. DEP'T OF JUSTICE, GUIDE TO THE FREEDOM OF INFORMATION ACT (2009), available at hup:// www.jusuce.gov/0ip/f0ia-guide09.htm.
114. Id.
115. Id.
116. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1133 n.i (D.C. Cir. 1987)
117. Mallinckrodt Inc. v. West, 140 F. Supp. 2d 1, 4 (D.D.C. 2000) ("In a 'reverse FOIA' case, the court has jurisdiction when a party disputes an agency's decision to release information under FOIA."), appeal dismissed voluntarily, No. 00-5330 (D.C. Cir. Dec. 12, 2000)
118. Cortez III Serv. Corp. v. NASA, 921 F. Supp. 8, 11 (D.D.C. 1996) (holding diat in reverse FOIA actions "courts have jurisdiction to hear complaints brought by parties claiming that an agency decision to release information adversely affects diem"), appeal dismissed voluntarily, No. 96-5163 (D.C. Cir. July 3, 1996)
119. See 5 U.S.C. § 552(a)(3)(A) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, lal Stat. 2524.
120. Exec. Order No. 12,600, 3 C.F.R. 235 (1987).
121. Id. at 236-37.
122. 5 U.S.C.§ 552(b)(4).
123. CNA, 830 F.2d at 1151-52;
124. see, e.g., Pac. Architects & Eng'rs v. U.S. Dep't of State, 906 F.2d 1345, 1347 (9th Cir. 1990) (holding that when the release of requested information is barred by the Trade Secrets Act, "the agency does not have discretion to release it")
125. Envtl. Tech., Inc. v. EPA, 822 F. Supp. 1226, 1228 (E.D. Va. 1993) ("[T]he Trade Secrets Act bars disclosure of information that falls within Exemption 4⋯." (citation omitted))
126. Gen. Dynamics Corp. v. U.S. Dep't of the Air Force, 822 F. Supp. 804, 806 (D.D.C. 1992) ("[T]he Trade Secrets Act is an independent prohibition on the disclosure of information within its scope." (citation omitted)), vacated, No. 92-5186, 1993 WL 411465 (D.C. Cir. Sept. 23, 1993)
127. see also Office of Info. Policy, U.S. Dep't of Justice, OIP Guidance: Discretionary Disclosure and Exemption 4, FOIA UPDATE, Summer 1985, http://www.justice.gov/oip/foia-updates/Vol-VI-3/page3.htm (discussing Trade Secrets Act bar to discretionary disclosure under Exemption 4).
128. 5 U.S.C. § 704 (2006)
129. see, e.g., Canadian Commercial Corp. v. Dep't of die Air Force, 514 F.3d 37, 39 (D.C. Cir. 2008) (citation omitted).
130. 5 U.S.C. §7o6(2)(A)
131. Chrysler Corp. v. Brown, 441 U.S. 281, 318 (1979) (citing 5 U.S.C. § 706)
132. Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1184 (8th Cir. 2000)
133. Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, 924 F.2d 274, 277 (D.C. Cir. 1991)
134. Gen. Dynamics, 822 F. Supp. at 806
135. Davis Corp. v. United States, No. 87-3365, 1988 U.S. Dist. LEXIS 17611, at
136. 5-6 (D.D.C.Jan. 19, 1988).
137. 21 U.S.C. § 331 (j) (2006). The section provides as follows: The following acts and the causing thereof are hereby prohibited: (j) The using by any person to his own advantage, or revealing, other than to the Secretary or officers or employees of the Department, or to the courts when relevant in anyjudicial proceeding under [21 U.S.C. §§ 301-399], any information acquired under authority of section 344 ⋯ concerning any method or process which as a trade secret is entided to protection
138. or the violating of [21 U.S.C. § 346a(i) (2)] or any regulation issued under that section.
139. Id.
140. Id.
141. According to 45 C.F.R. § 5.31 (2009): If die records sought are "exclusively records of die Food and Drug Administration, only the Associate Commissioner for Public Affairs, FDA, who also is die FDA Freedom of Information Officer, may determine whedier to release or deny die records." Id. § 5.31(a)(2)(H).
142. 21 C.F.R. § 20.20 (2010).
143. 21 C.F.R. § 20.47 (2010).
144. 21 C.F.R. § 20.48 (2010). Judicial review is available under 5 U.S.C. § 702. The section further provides: Where the Food and Drug Administration consults widi a person who will be affected by a proposed disclosure of data or information contained in Food and Drug Administration records pursuant to § 20.47, an^ rejects die person's request that part or all of die records not be made available for public disclosure, die decision constitutes final agency action diat is subject to judicial review pursuant to 5 U.S.C. chapter 7. The person affected will be permitted 5 days after receipt of notification of such decision within which to institute suit in a United States District Court to enjoin release of the records involved. If suit is brought, the Food and Drug Administration will not disclose the records involved until the matter and all related appeals have been concluded.
145. Id.
146. Seen C.F.R. § 20.61 (2010).
147. The regulation states that A trade secret may consist of any commercially valuable plan, formula, process, or device diat is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort There must be a direct relationship between the trade secret and the productive process.
148. Id.
149. § 20.61 (a). This last sentence requiring a direct relationship between the trade secret and the process does not appear in the Restatement of Torts.
150. See also 21 C.F.R. § 720.8(b) (2010) (applying the six-prong test from the Restatement of Torts to determine whether information qualifies as a trade secret for cosmetic ingredients).
151. The section defined privileged or confidential commercial or financial information as "information which is used in one's business and is of a type customarily held in strict confidence or regarded as privileged and not disclosed to any member of the public by the person to whom it belongs." 21 C.F.R. § 20.61 (b).
152. Id.
153. § 20.61 (e)(i)-(2).
154. Id.
155. § 20.61(e)(3).
156. Id.
157. 21 C.F.R. §20.55 (2010) ("Whenever the Food and Drug Administration denies a request for a record or portion thereof on the grounds that the record or portion thereof is exempt from public disclosure as trade secret⋯ under § 20.61, and the person requesting the record subsequendy contests the denial in the courts, the Food and Drug Administration will so inform the person affected, i.e., die person who submitted the record, and will require that such person intervene to defend the exempt status of die record⋯. If the affected person fails to intervene to defend die exempt status of die records and to itemize and index the disputed records, die Food and Drug Administration will take diis failure into consideration in deciding whether diat person has waived such exemption so as to require die Food and Drug Administration to promptly make the records available for public disclosure.").
158. A search and review of the following SEC regulations governing die treatment of confidential information did not reveal a definition of "trade secret": 5 U.S.C. § 706 (2006)
159. 15 U.S.C. §78x (2006)
160. 17 C.F.R. §200.80 (2010)
161. 17 C.F.R. §200.83 (2010)
162. 17 C.F.R. § 200.402 (2010)
163. 17 C.F.R. § 229.402 (2010)
164. 17 C.F.R. § 240.240-2 (2010).
165. See 17 C.F.R. § 200.80
166. 17 C.F.R. § 200.402
167. 17 C.F.R. § 229.402.
168. 17 C.F.R. § 200.83(c)(1) ("Any person who, eidier voluntarily or pursuant to any requirement of law, submits any information or causes or permits any information to be submitted to die Commission, which information is entided to confidential treatment⋯ , may request diat die Commission afford confidential treatment under die Freedom of Information Act to such information for reasons of personal privacy or business confidentiality, or for any odier reason permitted by Federal law⋯.").
169. 15U.S.C. §78x(e)(2). log.
170. Id.
171. § 78x(c) ("The Commission may, in its discretion and upon a showing diat such information is needed, provide all 'records' ⋯ and odier information in its possession to such persons, both domestic and foreign, as the Commission by rule deems appropriate if the person receiving such records or information provides such assurances of confidentiality as the Commission deems appropriate.").
172. Courts have applied 15 U.S.C. § 78x(c) outside of FOIA. See, e.g., SEC v. Merrill Scott & Assocs., Ltd., No. 2:02-CV-3g-TC, 2008 WL- 276502, at
173. 2 (D. Utah Jan. 30, 2008) (holding that pursuant to 15 U.S.C. § 78x(c), the SEC could release confidential information to the DOJ), ajfd in part and rev'd in part, 600 F.gd 1262 (10th Cir. 2010)
174. SEC v. RJ. Reynolds Tobacco Holdings, Inc., No. MISOA.03-i65i(JDB), 2004 WL 3168281, at
175. 12-13 (D.D.C. June 29, 2004) (holding that pursuant to 15 U.S.C. § 78x(c) and 17 C.F.R. § 240.24C-1, the SEC could use its discretion to release confidential information to the DOJ).
176. See Merrill Scott, 2008 WL 276502, at
177. 17 C.F.R. § 240.242 (2010). This section is also read in conjunction with 17 C.F.R. § 200.83, a separate regulation dealing with confidential treatment under FOIA.
178. id. §240.240-2 (b)(2).
179. 17 C.F.R. § 200.83(c)(6) (2010).
180. Id.% 200.83(d)(2).
181. See id.
182. 200.83(d) (2) (v)-(vi). This subsection reads: (2) Substantiation of a request for confidential treatment shall consist of a statement setting forth, to the extent appropriate or necessary for the determination of the request for confidential treatment, the following information regarding the request: (i) The reasons, concisely stated and referring to specific exemptive provisions of the Freedom of Information Act, why the information should be withheld from access under the Freedom of Information Act
183. The applicability of any specific statutory or regulatory provisions which govern or may govern the treatment of the information; (iii) The existence and applicability of any prior determinations by the Commission, other Federal agencies, or a court, concerning confidential treatment of the information
184. The adverse consequences to a business enterprise, financial or otherwise, that would result from disclosure of confidential commercial or financial information, including any adverse effect on the business' competitive position;
185. The measures taken by the business to protect the confidentiality of die commercial or financial information in question and of similar information, prior to, and after, its submission to the Commission
186. The ease or difficulty of a competitor's obtaining or compiling the commercial or financial information
187. Whether the commercial or financial information was voluntarily submitted to the Commission and, if so, whether and how disclosure of the information would tend to impede the availability of similar information to the Commission
188. The extent, if any, to which portions of the substantiation of the request for confidential treatment should be afforded confidential treatment; and (ix) Such additional facts and such legal and other authorities as the requesting person may consider appropriate.
189. Id. 1200.83(d)(2).
190. Id. §200.83(d)(2)(v)-(vi).
191. Id. § 200.83(e)(1).
192. § 200.83(e)(3).
193. 5 U.S.C. § 7o6(2)(A) (2006).
194. 15 U.S.C. § 46(f) (2006).
195. 7d.§46(f)(i)-(2).
196. W.§57b-2(d)(i)(A), (b)(3)(C).
197. 16 C.F.R. § 1015.11 (2010).
198. 6C.F.R. § 1015.18(b).
199. i5U.S.C.§57b-2(c). 126. The subsection provides as follows: (c) Each request for exemption from disclosure under 5 U.S.C. 552(b)(4) as a trade secret or privileged or confidential commercial or financial information must: (1) Specifically identify the exact portion (s) of the document claimed to be confidential;
200. State whether the information claimed to be confidential has ever been released in any manner to a person who was not an employee or in a confidential relationship with die company
201. State whether the information so specified is commonly known widiin the industry or is readily ascertainable by outside persons widi a minimum of time and effort
202. State how release of the information so specified would be likely to cause substantial harm to the company's competitive position;
203. State whether the submitter is authorized to make claims of confidentiality on behalf of the person or organization concerned.
204. 16C.F.R. § 1015.18(c).
205. Id.% 1015.18(c)(3).
206. Id.% 1015.18(c)(4).
207. Id.% 1015.19(a).
208. Id.
209. See, e.g., supra notes 101-02 and accompanying text (FDA)
210. supra note 113 and accompanying text (SEC)
211. supra note 124 and accompanying text (FTC).
212. 40 C.F.R. § 2.204(a) (2010).
213. The EPA has a control office for different categories of business information, including confidential information. The EPA assigns responsibility for confidential information to the control office. An EPA employee must first obtain the concurrence of the control office before making information available to the public. 40 C.F.R. § 2.212 (2010).
214. 40 C.F.R. § 2.204 (d).
215. Id. § 2.204(d)-(e).
216. 40 C.F.R. § 2.205(a) (2010).
217. 40 C.F.R. § 2.204(e) provides as follows: (4) The written notice required by paragraph (e)(i) of this section shall invite the business's comments on the following points (subject to paragraph (e)(5) of this section): (i) The portions of the information which are alleged to be entitled to confidential treatment
218. The period of time for which confidential treatment is desired by the business (e.g., until a certain date, until the occurrence of a specified event, or permanently)
219. The purpose for which the information was furnished to EPA and the approximate date of submission, if known; (iv) Whether a business confidentiality claim accompanied the information when it was received by EPA
220. Measures taken by the business to guard against undesired disclosure of the information to others
221. The extent to which the information has been disclosed to others, and the precautions taken in connection therewith
222. Pertinent confidentiality determinations, if any, by EPA or other Federal agencies, and a copy of any such determination, or reference to it, if available
223. Whether the business asserts that disclosure of die information would be likely to result in substantial harmful effects on the business'[s] competitive position, and if so, what those harmful effects would be, why they should be viewed as substantial, and an explanation of the causal relationship between disclosure and such harmful effects
224. Whether the business asserts that the information is voluntarily submitted information as defined in § 2.201 (i), and if so, whetiier and why disclosure of the information would tend to lessen the availability to EPA of similar information in the future.
225. 40 C.F.R.§ 2.204(e).
226. See supra notes 99 (FDA) ,115 (SEC), and 126 (FTC).
227. 40 C.F.R. § 2.204(e)(4).
228. Id. § 2.204(e)(4)(viii).
229. 40 C.F.R.§ 2.208 (2010).
230. Id. § 2.2o8(b)-(c).
231. See, e.g., Irvin B. Vann, Electronic Data Sharing in Public Sector Agencies, in HANDBOOK OF PUBLIC I NFORMATION SYSTEMS 249, 249 (Christopher M. Shear & G. David Carson eds., 3d ed. 2010). 144.
232. See, e.g., Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1251 (D.C. Cir. 2005) (discussing how trade secrets and confidential information for the thyroid drug Unithroid were accidentally posted on an FDA website for five months)
233. B&J Oil & Gas v. Fed. Energy Regulatory Comm'n, 353 F.3d 71, 74 (D.C. Cir. 2004) (recounting how the Federal Energy Regulatory Commission ("FERC") accidentally posted a gas company's confidential information)
234. HiRel Connectors, Inc. v. United States, No. CV01-11069 DSF VBKX, 2006 WL 3618011 (CD. Cal. Jan. 25, 2006) (examining allegations of trade-secret misappropriation involving disclosures of missile part specifications over the Internet and through responses to RFPs)
235. Myers v. Williams, 819 F. Supp. 919, 920-21 (D. Or. 1993) (describing how the FDA accidentally disclosed the formula for Upjohn's sleeping pill Halcion to a prisoner who claimed the drug caused him to break the law
236. Upjohn obtained an injunction barring the prisoner from selling die formula to Upjohn's competitor).
237. See Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)
238. Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554 (D.C. Cir. 2002)
239. Masonite Corp. v. Cnty. of Mendocino Air Quality Mgmt. Dist., 49 Cal. Rptr. 2d 639 (CL App. 1996).
240. N. Coast Rivers Alliance v. Johnson, No. 4:08 cv-05328 SBA (N.D. Cal. Feb. 2, 2009) (dismissed by stipulation of die parties).
241. Natl Wildlife Fed'n, 286 F.3d at 574.
242. N. Coast Rivers Alliance, No. 4:08 cv-05328 SBA.
243. B&ff Oil & Gas, 353 F.3d at 74.
244. Myers v. Williams, 819 F. Supp. 919, 920 (D. Or. 1993).
245. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1251 (D.C. Cir. 2005).
246. See, e.g., Secure Servs. Tech., Inc. v. Time & Space Processing, Inc., 722 F. Supp. 1354, 1357-65 (E.D. Va. 1989) (discussing a situation between two vendors where die government loaned die defendant one of plaintiffs fax machines to achieve compatibility between die machines, and no trade-secret violation was found since plaintiff had not prohibited the government from sharing die machine with an agreement).
247. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 994-95 (1984) (discussing forced revelation of trade-secret information by amendment to Federal Insecticide, Fungicide, and Rodenticide Act).
248. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 285 (1979)
249. Doe v. Veneman, 380 F.3d 807, 810 (5th Cir. 2004)
250. Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)
251. Williams v. Curtiss-Wright Corp., 681 F.2d 161, 162 (3d Cir. 1982).
252. These kinds of intentional disclosures, if made by a government employee whose identity can be ascertained, could lead to possible criminal liability. See Economic Espionage Act of 1996, 18 U.S.C. § 1832 (2006); Trade Secrets Act, 18 U.S.C. § 1905 (2006).
253. Wearly v. FTC, 462 F. Supp. 589, 600 (D.N.J. 1978), vacated, 616 F.2d 662 (3d Cir. 1980) (holding that the matter was not ripe for judicial review).
254. See, e.g., Connelly, supra note 49, at 208.
255. See, e.g., id. at 2og.
256. U.S. CONST, art. I, § 6, cl. 1.
257. See Wearly, 462 F. Supp. at 600 n.13 (discussing Senator Joseph McCarthy's classic use of the Speech or Debate Clause).
258. See supra text accompanying note 113.
259. 21 C.F.R. § 20.61(f)(3) (2010).
260. 5 U.S.C. § 706 (2006).
261. Id.§ 706(2)(A).
262. SeeZotos Int'l, Inc. v. Young, 830 F.2d 350, 351 (D.C. Cir. 1987).
263. See id. at 353 (discussing the FDA's procedure).
264. Id. at 353-54.
265. See Mary L. Lyndon, Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental, Health, and Safety Law, 78 U. COLO. L. REV. 465, 502-03 (2007) (arguing that these dynamics in the regulatory context favor secrecy).
266. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007 (1984) (noting that Monsanto willingly bore the burden of disclosure to the government in exchange for "die ability to market pesticides in this country").
267. Seejanka, supra note 51, at 355 (discussing why this kind of choice may not be permitted under the unconstitutional-conditions doctrine, "which prevents die government from conditioning the receipt of public benefits on an individual's willingness to waive his constitutional rights").
268. 312 F-3d 24,46-47 (1st Cir. 2002).
269. See, e.g., Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 289-90 (D. Del. 1985) (action between Coca-Cola and its bottlers, wherein bottlers sought to compel production of die complete formula of Coke).
270. See, e.g., Snowden ex reL Victor v. Connaught Labs., Inc., 136 F.R.D. 694, 699-70 (D. Kan. 1991) (granting motion to compel disclosure of trade secrets relating to vaccine in a products-liability action); Kleinerman v. U.S. Postal Serv., 100 F.R.D. 66, 69-70 (D. Mass. 1983) (granting motion to compel disclosure of trade secrets where central to plaintiffs theory of trade-secret misappropriation).
271. Snowden, 136 F.R.D. at 699 (noting that the trade secrets of a third party "are entided to greater protection" and did not have to be disclosed). In the refusal-to-submit cases, however, there is no business relationship or litigation pending between the company and the government. This should suggest a more cautious approach to compelling production in the refusal-to-submit cases.
272. Upjohn Co. v. Hygieia Biological Labs., 151 F.R.D. 355, 358-59 (E.D. Cal. 1993).
273. Id. at 358 (internal quotation marks omitted).
274. Id.
275. Wearly v. FTC, 462 F. Supp. 589, 594 (D.NJ. 1978), vacated, 616 F.2d 662 (3d Cir. 1980).
276. Melori Shoe Corp. v. Pierce & Stevens, Inc., 14 F.R.D. 346, 347 (D. Mass. 1953).
277. Id.
278. see, e.g.. Hartley Pen Co. v. U.S. Dist. Court for the S. Dist. of Cal., 287 F.2d 324 (gth Cir. 1961) (seeking to compel party to answer interrogatories that would reveal its trade secrets).
279. Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (lotii Cir. 1981).
280. Id.
281. See State ex reL Johnson v. Tsapis, 419 S.E.2d 1, 3 (W. Va. 1992) (applying the Restatement of Torts's six-factor test to determine whether there is good cause under Rule 26(c)(7) of die Federal Rules of Civil Procedure).
282. Id.
283. See, e.g., Snowden ex reL Victor v. Connaught Labs., Inc., 136 F.R.D. 694, 698 (D. Kan. tggi); Premier Election Solutions, Inc. v. SysTest Labs Inc., Civil Action No. 09-CV-01822-WDM-KMT, 2009 WL 3075597, at
284. 8 (D. Colo. Sept. 22, 20og).
285. Pochat v. State Farm Mut. Auto. Ins. Co., No. Civ. 08-5015-KES, 2008 WL 5192427, at ?3-4 (D.S.D. Dec. 11, 2008).
286. Id.
287. Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (10th Cir. 1981)
288. see Pochat, 2008 WL 5192427, at 4.
289. 100 F.R.D. 66 (D. Mass. 1983). igo.
290. Id. at 69-70.
291. See id. at 70.
292. Among the factors were "the various policies underlying the [Federal Environmental Pesticide Control Act], such as die promodon of research, die interest in compeddon, die protection of public healdi and die environment, and die improvement of pesdcides, as well as odier governmental interests." Chevron Chem. Co. v. Cosde, 443 F. Supp. 1024, 1032 (N.D. Cal. 1978).
293. Id. at 1025.
294. Id.
295. Id. at 1032.
296. Id.
297. 447 F. Supp. 811,835 (W.D. Mo. 1978)
298. see also Dow Chem. Co. v. Cosde, 464 F. Supp. 395 (E.D. Mich. 1978) (remanding to die agency to determine whether trade secrets existed according to die Restatement of Torts's definition).
299. United States v. Nat'l Steel Corp., 26 F.R.D. 603 (S.D. Tex. 1960).
300. See id.
301. See id.
302. See Chrysler Corp. v. Brown, 441 U.S. 281, 285 (1979) ("This case belongs to a class that has been popularly denominated 'reverse-FOIA' suits.").
303. 5 U.S.C. §§ 701-706 (2006); see cases cited supra note 89.
304. See cases cited supra note 91.
305. 5 U.S.C. § 552(b)(4) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, lal Stat. 2524.
306. See, e.g., Buffalo Evening News, Inc. v. Small Bus. Ass'n, 666 F. Supp. 467, 469 (W.D.N.Y. 1987).
307. See, e.g.. Am. Airlines, Inc. v. Nat'l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978).
308. See Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (en banc) (holding that voluntarily submitted information to the government will be treated as confidential if it is not ordinarily public).
309. Parker v. Bureau of Land Mgmt, 141 F. Supp. 2d 71, 77 (D.D.C. 2001).
310. Some courts have held that the government must actually exercise its authority to compel submission of the information beyond the issuance of a subpoena in order to be considered mandatory under National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).
311. See Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 246 (2d Cir. 2006)
312. Parker, 141 F. Supp. 2d at 78 n.6.
313. McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 242 (E.D. Mo. 1996). an.
314. Id.
315. Id.
316. 40 C.F.R. § 2.20i(i) (2010).
317. See Nat'l Parks, 498 F.2d 765.
318. Id. at 770
319. McDonnell Douglas, 922 F. Supp. at 241.
320. Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (en banc).
321. Id. at 872
322. McDonnell Douglas, 922 F. Supp. at 241.
323. McDonnell Douglas, 922 F. Supp. at 241.
324. Critical Mass, 975 F.2d at 883 (Ginsburg.J., dissenting).
325. Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983).
326. See, e.g., Connelly, supra note 49, at 235. In one case, the court stated that the ease-of-reverse-engineering factor from the Restatement of Torts will have bearing on the "substantial competitive harm" test. See Worthington Compressors, Inc. v. Cosde, 662 F.2d 45, 52-53 (D.C. Cir. 1981).
327. Critical Mass, 975 F.2d at 878.
328. Id. at 879.
329. Snowden ex reL Victor v. Connaught Labs., Inc, 136 F.R.D. 694, 699-700 (D. Kan. 1991)
330. Premier Election Solutions, Inc. v. SysTest Labs Inc., Civil Action No. 09-CV-01822-WDM-KMT, 2009 WL 3075597, at io (D. Colo. Sept. 22, 20og) (denying motion to compel nonparty to produce trade-secret information).
331. See, e.g., Premier Election Solutions, 2009 WL 3075597, at io.
332. See discussion supra Part IIIA.2.
333. Seediscussion supra Part IIIA.2
334. See supra note 203 and accompanying text.
335. See discussion supra Part IIIA.3.
336. See supra notes 214-20 and accompanying text.
337. See, e.g., Connelly, supra note 49, at 235. This broad exemption for trade secret and confidential information is probably further motivation for the Obama Administration's push to encourage a policy in favor of greater disclosure under FOIA. Memorandum on the Freedom of Information Act, 20og DAILY COMP. PRES. DOC. 9 (Jan. 21, 2009).
338. The EPA, for instance, has incorporated the FOIA test in its regulations. See infra text accompanying note 244.
339. $& supra notes 39-43 and accompanying text.
340. Of course, this Article assumes the difficult circumstance where a government regulation does not require that the information in question be produced. Indeed, in the real-life Toyota situation, the NHTSA had issued a rule requiring that manufacturers who included black boxes in vehicles must make tools available to these vehicle owners to download and read the data recorded in the boxes. However, the rule will not be implemented until 2012. See Dionne Searcey & Kate Linebaugh, Toyota Woes Put Focus on Black Box, WALL ST. J., Feb. 14, 2010, http://online.wsj.com/article/ SB10001424052748703562404575067680423734178. html. Even if it had been in effect, it is unclear whether such a regulation granting access to individual vehicle owners would affect Toyota's obligation to produce the data to the government.
341. See supra Parts H.C, III A.3.
342. SeeVSL Corp. v. Gen. Techs. Inc., 46 U.S.P.Q.2d (BNA) 1356, 1360 (N.D. Cal. 1998) (finding plaintiffs trade-secret claim to be specious where it had been careless about guarding the alleged secret).
343. See Rowe, supra note 24, at 1447 (discussing the substantive legal standard for a plaintiff in a trade-secret action).
344. To create a protectable trade secret, it is essential that a plaintiff take affirmative steps to preserve the confidentiality of the alleged secret information.
345. See, e.g., Niemi v. Am. Axle Mfg. & Holding, Inc., No. 269155, 2007 WL 29383, at * 4 (Mich. Ct. App. Jan. 4, 2007)
346. Dicks v.Jensen, 768 A.2d 1279, 1284 (VL 5001) (grandng summary judgment in favor of defendant where there was "no evidence in the record that plaintiff took any measures to indicate that the customer list was confidential").
347. SeeZotos Int'l, Inc. v. Young, 830 F.2d 350, 352 (D.C. Cir. 1987) (using Restatement of Torts's six factors to determine whether the information qualified as trade secret).
348. While the default rule could be a presumption in favor of disclosure for non-trade-secret confidential informadon, it could be a rebuttable presumption. Courts could use dieir discretion to do otherwise depending on die compelling nature of die remaining proof of harm, relevance, and need.
349. See Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203-04 (Fed. Cir. 2004) (finding diat customers who purchased garage door openers were audiorized under die copyright laws to use the copy of die embedded software diat diey purchased). In addition, some state laws make data from event data recorders die property of die vehicle owner. See Tim Sramcik, 'Black Box' Information Driving Convictions, ABRN (Oct. 3, 2005), http://www.search- autoparts.com/searchautoparts/article/articleDetail.jsp?id=i84i35.
350. See Underwater Storage v. U.S. Rubber Co., 371 F.2d 950, 955 (D.C. Cir. 1966) ("Once die secret is published to die 'whole world,'⋯ it loses its protected status and becomes available to odiers for use and copying widiout fear of legal reprisal from die original possessor.")
351. Lockridge v. Tweco Prods., Inc., 497 P.2d 131, 134 (Kan. 1972).
352. 17 C.F.R. § 200.83(d)(2)(iv) (2010).
353. 40 C.F.R. § 2.204(e)(4)(viii) (2010).
354. See Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983).
355. See Premier Election Solutions, Inc. v. SysTest Labs Inc., Civil Action No. 09-CV-01822-WDM-KMT, 2009 WL 3075597, at
356. 7-8 (D. Colo. Sept. 22, 2009) (discussing a burden shift to the party seeking discovery to establish that disclosure of a trade secret is relevant and necessary).
357. See Elizabedi A. Rowe, Introducing a Takedown for Trade Secrets on the Internet, 2007 WIS. L. REV. 1041, 1049-50 (discussing the importance of trade secrets to the economy and the harm from disclosure).
358. See Premier Election Solutions, 2009 WL 3075597, at * 109 (refusing to order production of trade-secret information "in light of the minimal relevancy of the information ⋯ to the underlying case").
359. See supra notes 180-82 and accompanying text.
360. See supra note 43 and accompanying text.
361. See supra note 68 and accompanying text
362. See, e.g., Snowden ex ret Victor v. Connaught Labs., Inc., 136 F.R.D. 694, 698 (D. Kan. 1991) (assessing necessity and considering whether the information sought is available elsewhere).
363. See EchoStar Commc'ns Corp. v. News Corp., 180 F.R.D. 391, 394 (D. Colo. 1998) (finding that in discovery matter courts must balance need for disclosure of die trade secret against potential injury from disclosure).
364. This could contrast widi a situation where the information is sought by an agency for a purpose that could direcdy benefit the company's competitor or anouier party who has no incentive to protect the secrecy of the information.
365. See UNIF- TRADE SECRETS ACT §1(4) (amended 1985), 14 U.LA 538 (2005)
366. RESTATEMENT OF TORTS § 757 cmt. b (1939).
367. See, e.g., Dorel Juvenile Grp., Inc. v. DiMartinis, 495 F.3d 500, 502 (7th Cir. 2007) (discussing brand positioning strategies that change, evolve, and tied to products that would become public as having a short shelf life as a trade secret).
368. SaNat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
369. See Lyndon, supra note 7, at 44 ("While one is entitled to the fruits of one's labors, one is not entided to injure odiers with them.").
370. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1020 (1984) (holding that trade secrets are property under state law and are protected from uncompensated disclosure by the Takings Clause of the Fifth Amendment)
371. see also Philip Morris, Inc. v. Reilly, 312 F.3d 24, 45-46 (1st Cir. 2002) (cidng Monsanto to conclude diat a Massachusetts statute effected a taking of tobacco companies' trade secrets)
372. Janka, supra note 51, at 338-39, 343-44 (discussing Monsanto and public use).
373. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) ("Courts ⋯ have a great deal of flexibility in crafting the contents of protective orders to minimize die negative consequences of disclosure and serve die public interest simultaneously.").
374. SeeRowe, supra note 24, at 1451 (discussing safeguards for trade secrets in die course of litigation).
375. See Yeager v. DEA, 678 F.2d 315, 322-23 (D.C. Cir. 1982) (reasoning that FOIA does not require agency to modify exempt information so diat it can be produced to requester).
376. 15 U.S.C. § 57b-a(d)(i)(D) (2006).
377. 16 C.F.R. § 1015.19(a) (2010). The SEC regulations also provide that "any reasonably segregable portion of a record shall be provided ⋯ after deletion of the portions which are considered nonpublic." 17 C.F.R. 200.80(b) (2010).
378. See, e.g., Elizabeth A. Rowe, The Experimental Use Exception to Patent Infringement: Do Universities Deserve Special Treatment?, 57 HASTINGS L.J. 921, 953 (2006) (discussing proposed standard under which Congress may consider exemptions to patent infringement).
379. See discussion supra Part III.B.
380. See Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir. 1981) ("To resist discovery under Rule 26(c)(7), a person must first establish that the information sought is a trade secret⋯. ").