18 U.S.C. § 1836 — Civil proceedings

(a) The Attorney General may bring a civil case and obtain appropriate injunctive relief against any violation of this chapter. (b) Private civil actions. (1) In general. An owner of a misappropriated trade secret may bring a civil action under this subsection if the secret concerns a product or service used in, or intended for use in, interstate or foreign commerce. (2) Civil seizure. (A) (i) Application. Based on an affidavit or verified complaint meeting this paragraph’s requirements, a court may, on an ex parte application and only in extraordinary circumstances, order property seized when necessary to stop the trade secret’s spread or disclosure. (ii) Required findings. The court may issue that order only if specific facts clearly show that— (I) a Rule 65 Federal Rules of Civil Procedure order or other equitable relief would not work because the target would evade it, avoid it, or fail to obey it; (II) immediate and irreparable injury will occur without seizure; (III) denying the applicant’s request would harm the applicant more than granting it would harm the target’s legitimate interests, and would substantially harm third parties less than granting it would; (IV) the applicant is likely to prove that the information is a trade secret and that the target either misappropriated the applicant’s trade secret by improper means or conspired to use improper means to misappropriate the applicant’s trade secret; (V) the target actually possesses both the trade secret and the property to be seized; (VI) the application identifies the property to be seized with reasonable particularity and, when reasonable, its location; (VII) if proceeding with notice, the target or people acting with the target would destroy, move, hide, or otherwise make the property inaccessible to the court; and (VIII) the applicant has not publicized the requested seizure. (B) Order contents. An order must state the required factual findings and legal conclusions; require the narrowest necessary seizure conducted to minimize disruption to third parties and, when possible, the accused person’s legitimate business; protect seized property from disclosure by barring the applicant and target from access and barring copying until affected parties can be heard, while making any later access consistent with subparagraph (D); instruct law-enforcement officers about the scope of their authority, including execution hours and whether force may open locked areas; set the hearing in subparagraph (F) as soon as possible and within 7 days unless affected parties consent to another date, while allowing a noticed motion at any time to dissolve or change the order; and require the applicant to post court-set security for damages from wrongful or excessive seizure or attempted seizure. (C) Publicity. The court must protect the target from publicity, by or at the applicant’s request, about the order or seizure. (D) Court custody. Seized materials go into court custody, and the court must secure them from physical and electronic access during seizure and custody. A seized storage medium may not connect to a network or the Internet without both parties’ consent until the required hearing. The court must protect confidential seized material unrelated to the ordered trade-secret information unless the target consents to disclosure. The court may appoint a special master to locate and isolate misappropriated trade-secret information and help return unrelated property and data; the master must sign a court-approved nondisclosure agreement. (E) Service. A Federal law-enforcement officer must serve the order and the applicant’s submissions and then conduct the seizure. State or local officers may participate, but the applicant and the applicant’s agents may not. At law enforcement’s request, the court may allow an unaffiliated technical expert bound by a court-approved nondisclosure agreement if the expert will make execution efficient and reduce the burden. (F) Hearing. The court must hold the seizure hearing on the set date. The applicant bears the burden of proving the facts supporting the order; if the applicant fails, the order must be dissolved or appropriately changed. The target or anyone harmed may move at any time, after notice, to dissolve or change it. The court may adjust Federal Rules discovery deadlines as needed to prevent defeating the hearing’s purpose. (G) Wrongful seizure. A person damaged by wrongful or excessive seizure may sue the applicant and receive the relief provided by 15 U.S.C. 1116(d)(11). The posted security does not limit third parties’ damages recovery. (H) Encryption. A party or person claiming an interest in seized material may move at any time, even ex parte, to encrypt material stored on a storage medium. When possible, the motion must state the desired encryption method. (3) Remedies. In a qualifying trade-secret misappropriation case, the court may— (A) issue an injunction on reasonable terms to stop actual or threatened misappropriation. It may not bar someone from entering an employment relationship, and employment conditions must rest on evidence of threatened misappropriation rather than merely what the person knows. It also may not conflict with applicable State law against restraints on lawful work. The court may require affirmative steps to protect the secret. In exceptional circumstances making an injunction inequitable, it may allow future use only on payment of a reasonable royalty, for no longer than the period use could have been prohibited; (B) award damages for actual loss and for unjust enrichment not included in actual-loss damages, or instead measure damages by imposing liability for a reasonable royalty for unauthorized disclosure or use; (C) award exemplary damages up to twice the damages under subparagraph (B) for willful and malicious misappropriation; and (D) award reasonable attorney’s fees to the prevailing party if the claim, or a motion to end or oppose an injunction, was made in bad faith, or if the misappropriation was willful and malicious. Bad faith may be shown by circumstantial evidence. (c) Jurisdiction. United States district courts have original jurisdiction over civil actions under this section. (d) Time limit. A subsection (b) action must be filed within 3 years after the misappropriation was discovered or reasonably should have been discovered. A continuing misappropriation is one claim.