Trade Secrets & the Archive

Thomas H. Rousse

I'm currently in a seminar on Trade Secrets taught by Professor Matthew Kugler, a new hire at Northwestern Pritzker. We read two cases about the Fairchild F-45 that inspired me to think about the threat that trade secret law can pose to information. Herrick v. Garvey (10th Cir. 2002)1 and Taylor v. Babbitt (D.C.C. 2011)2 both deal with efforts by collectors and preservationists to gain access to the design specifications of the Fairchild F-45, a pre-WWII plane. The FAA had access to technical materials on the planes due to a regulatory requirement, and Fairchild had previously given permission to the FAA to share that information with people who requested it.3 Nonetheless, Fairchild opposed the Freedom of Information Act request for the material.

Both courts resolved the issue as a question of value, holding that the plans had no value relative to Fairchild, because the company no longer built airplanes or had any concrete plans to enter the antique restoration business. Fairchild's efforts under the circumstances struck me as patently unreasonable. For no apparent gain, Fairchild was preventing preservation of our collective material heritage. Reasonable efforts under the circumstances is a core definition of trade secrecy per the Uniform Trade Secrets Act,4 but it is typically seen as a floor, and not a ceiling. In the paper, I propose that courts should consider unreasonable efforts under the circumstances and decline to enforce misappropriation claims where the costs to society clearly outweigh the benefits of protection.

To flesh out the draft, I'm currently looking for examples of situations where trade secrecy or proprietary information regimes have posed a threat to conservation, archival work, or scholarship. Unfortunately I've had a very difficult time finding any relevant cases, which threatens to make my paper a solution without a problem. It seems plausible that there might be instances of archives or libraries declining to make the papers of company founders, etc., available for fear of misappropriation, but it's difficult to find examples of information that hasn't been made available to the public due to the discretionary nature of the issue: decisions not to court legal trouble don't lead to court cases.

I'd be grateful for any assistance from archivists and fellow scholars. Please contact me at if you have any pertinent examples or personal experience.

  1. 298 F.3d 1184

  2. 760 F. Supp. 2d 80

  3. As it turned out, no one had actually requested it.

  4. See UTSA §4(ii.)