The Disappearing Trip & Fall

I once discussed discovery problems that arose in a dog bite case that apparently then threatened national security.  Now a discovery and trial dispute in a case that arises from making people disappear.  As some might have read, David Copperfield is being sued because an audience participant tripped and fell during an illusion.[1]

As of this post, the trial is still ongoing but the case has generated at least two writ petitions.  One concerned a discovery related topic.  Although plaintiffs twice previously signed protective orders to keep the illusion’s mechanics a secret, at trial they argued the mechanics were no longer a secret and should be presented in open court.  The district court refused to close that portion of the trial to the public.

The Court of Appeals reversed.  Nevada expressly “protects against the public disclosure of trade secrets during litigation.”[2]  The district court went too far by denying any protection.  Instead, the court should be closed

only as to information that has not yet been made public or that overlaps with information that has not been made public. If any colorable claim of a non-disclosed trade secret is made, the court should conduct a hearing to determine whether it is necessary to close the courtroom to protect against disclosure of a trade secret.

How does this apply to discovery?  In matters where trade secrets are in dispute, who can attend depositions, read internal company documents, and what information expert witnesses get to know is often a disputed point.  If courts can be closed for parts of the trial involving the trade secret, then so can discovery proceedings.

[1] I suspect at this point Copperfield wishes the audience member had been subjected to the Disappearing Man from The Prestige, which theoretically minimizes the chance of a trip and fall while raising a number of other ethical questions, but I digress.
[2] David Copperfield’s Disappearing, Inc., v. Dist. Ct., No. 75609, 2018 Nev. App. Unpub. LEXIS 272 (Ct. App. Apr. 20, 2018); NRS 600A.070 (“In any civil or criminal action, the court shall preserve the secrecy of an alleged trade secret by reasonable means….”).