In a trade secret dispute over THC remediation processes, Judge Hall recently denied a hemp processing company's motion for a preliminary injunction. The redacted version of her opinion came out yesterday, and it gives some helpful guidance for parties litigating trade secret disputes. It also touches on an important tip for legal writers everywhere.
As usual, one of the key questions was whether the plaintiff adequately identified the trade secrets at issue. This requires a careful balancing act—the trade secret needs to be broad enough to cover what the defendant is doing, but narrow enough to qualify for trade secret protection in the first place.
In trying to walk this line, lawyers are often tempted to use terms like "and/or" to keep their options open. In this case, the plaintiff used "and/or" in defining the scope of two of its alleged trade secrets. This ended up playing an important role in Judge Hall's likelihood-of-success analysis:
Starting with (1), SCB’s definition is not only general, it uses the modifier “and/or,” which suggests to the Court that SCB is attempting to claim as a trade secret the idea of oxidizing THC into CBN. If so, the Court rejects it. As SCB acknowledged at oral argument, the process of oxidation, and more particularly the fact that THC oxidizes into CBN, was well known in 2019.
. . .
Although SCB’s position is not entirely clear, its use of the “and/or” modifier in its interrogatory response suggests that it might be seeking to claim as trade secrets each of the individual “parameters and conditions” set forth in its interrogatory response and every possible permutation. As Defendants’ expert points out, that's 57 potential combinations of trade secrets. (D.I. 47 ¶¶ 29, 30.) SCB does not provide separate argument as to any particular permutation, making it impossible for the Court to determine which combinations of “parameters and conditions” it intends to press.
As legal writing experts have long pointed out, "and/or" is inherently imprecise—it's almost always better to replace it with exactly what you mean to say. And as Judge Hall's opinion illustrates, the term can create real pitfalls in litigation. So remember: Just say "no" to "and/or."
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