Takeaway
In short, this case holds that trade-secret law can reach aerial industrial espionage even when the photographer neither trespasses nor violates aviation rules, so long as the secret holder used reasonable—not extraordinary—measures to preserve secrecy.
While DuPont was constructing a Beaumont, Texas plant intended to use its allegedly secret, unpatented methanol-production process, parts of the process were visible from above. Rolfe and Gary Christopher, commercial photographers, were hired by an unidentified client to fly over the site and photograph it. They took sixteen aerial photographs, developed them, and delivered them to the client, but refused to identify that client when DuPont asked.
DuPont sued, alleging that the photographs disclosed trade secrets and had been wrongfully obtained and conveyed. It sought damages and injunctions against further circulation of the existing photographs and further photography. The Christophers moved to dismiss for lack of jurisdiction and failure to state a claim, sought summary judgment, and resisted discovery concerning their client. The district court denied their dispositive motions and ordered them to identify the client. It then certified for interlocutory appeal the question whether DuPont's complaint stated a legally sufficient claim. The Fifth Circuit affirmed and remanded for proceedings on the merits.
Issue #1
Whether Texas trade-secret law requires a plaintiff to allege trespass, other illegality, or breach of a confidential relationship before it can state a claim for misappropriation.
Holding
No. Texas law permits a claim when a trade secret is discovered through improper means, even without trespass, a separate legal violation, or a confidential relationship.
Reasoning
As a diversity court confronting an issue not previously decided by Texas courts, the Fifth Circuit sought to determine how the Texas Supreme Court would apply state law. In Hyde Corp. v. Huffines, the Texas Supreme Court adopted Restatement of Torts § 757, which imposes liability both when a person discovers a trade secret through improper means and when a person breaches confidence in using or disclosing it. The two routes to liability are independent.
The Christophers relied on language in Furr's Inc. v. United Specialty Advertising Co. suggesting that a breach of confidence was necessary. But Furr's involved information that had been publicly disclosed and voluntarily supplied during an effort to sell an advertising scheme. It addressed whether the defendant had breached confidence over properly acquired information, not whether the defendant had improperly discovered a secret in the first place. Reading Furr's to eliminate the Restatement's improper-means rule would make that portion of the rule meaningless.
Issue #2
Whether deliberately taking aerial photographs of a trade-secret process exposed during construction can be an improper means of discovery under Texas trade-secret law.
Holding
Yes. The alleged aerial espionage was an improper means of discovering a trade secret where DuPont had taken reasonable precautions to preserve secrecy and could not reasonably be expected to shield an unfinished plant from that surveillance.
Reasoning
Texas trade-secret doctrine allows competitors to learn information through independent research or by inspecting and analyzing a lawfully available finished product. It does not permit a competitor to avoid the expense and effort of those legitimate methods by taking a secret from its holder while the holder is reasonably trying to keep it confidential.
The Restatement explains that improper means include espionage and, more generally, methods that fall below accepted standards of commercial morality and reasonable conduct. The court treated the Christophers' intentional overflight to photograph a secret process for an undisclosed client as alleged industrial espionage of that kind, rather than ordinary competitive observation.
DuPont's precautions need only have been reasonable; it was not required to create an impenetrable fortress. Requiring DuPont to roof an unfinished industrial plant merely to prevent aerial surveillance would impose an enormous and unreasonable cost. The law protects commercial privacy against spying that could not reasonably be anticipated or prevented, while still leaving competitors room to inspect products and engage in legitimate market observation.
Issue #3
Whether the legality of the aircraft's flight under federal aviation regulations defeats DuPont's trade-secret claim.
Holding
No. Even a flight that complied with aviation regulations could constitute an improper means of obtaining trade secrets.
Reasoning
Aviation-law compliance and trade-secret liability answer different questions. The alleged wrong was not simply the aircraft's presence in public airspace; it was the intentional use of aerial photography to appropriate confidential process information under circumstances amounting to commercial espionage. Therefore, the court did not need to decide whether the chosen flight pattern violated federal aviation rules.