N.M. R. Evid. 11-508
N.M. R. Evid. 11-508
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; in Paragraph A, added the title, deleted "A person has a privilege, which may be claimed by the person or the person's agent or employee" and added "Unless upholding the privilege will tend to conceal fraud or otherwise work an injustice, a person or entity owning a trade secrete has a privilege", after "refuse to disclose", changed "and" to "or", and after "trade secret", deleted "owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice"; added Paragraph B; and in Paragraph C, added the title, deleted "When disclosure if directed" and added "If a court orders the disclosure of a trade secret", after "trade secret, the court", deleted "shall take such" and added "must order any appropriate", after "appropriate protective", deleted "measure as" and added "measures to safeguard", after "interests of the", deleted "holder of the privilege and of the parties and the furtherance of" and added "trade secret's owner or any interests that", and after "interests that justice", deleted "may require" and added "requires". The 1993 amendment, effective December 1, 1993, in the first sentence, substituted "the person or the person's" for "him or his" near the beginning, "others" for "other persons" near the middle, and "the person" for "him" near the end, and substituted "court" for "judge" in the second sentence. Procedure and guidelines for protecting trade secrets. Pincheira v. Allstate Ins. Co., 2008 -NMSC-049, 144 N.M. 601, 190 P.3d 322, aff'g 2007-NMCA-094, 142 N.M. 283, 164 P.3d 982. Procedure for evaluating the protection to be given an alleged trade secret during discovery. - The party resisting the discovery of alleged trade secrets must establish that the material requested is a trade secret and that the discovery will result in harm to the resisting party. If the resisting party establishes that the requested information is a trade secret, then the requesting party must show that information is necessary for a fair adjudication of its claim. The trial court must then evaluate the requesting party's need for the information and the potential harm of disclosure to the resisting party. Based on weighing these factor, the court must determine if, to what extent, and how disclosure must be made. Pincheira v. Allstate Insurance Co., 2007-NMCA-094, 142 N.M. 283, 164 P.3d 982, cert. granted, 2007-NMCERT-007. Economic value of trade secrets establishes harm. - If the party resisting discovery of alleged trade secrets establishes that the information sought derives economic value that can be obtained by others if the information is disclosed, then the loss of that value results in harm. Pincheira v. Allstate Insurance Co., 2007-NMCA-094, 142 N.M. 283, 164 P.3d 982, cert. granted, 2007-NMCERT-007. The essential elements of a trade secret are confidentiality and value. Pincheira v. Allstate Insurance Co., 2007-NMCA-094, 142 N.M. 283, 164 P.3d 982, cert. granted, 2007-NMCERT-007. Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §§ 68, 75 to 78. 98 C.J.S. Witnesses § 430.