A Whale of A Trade Secret. . . Or Not?

Last month, the Occupational Safety and Health Review Commission (“OSHRC”) refused to release SeaWorld’s new safety protocols for trainers interacting with killer whales, despite a recent court ruling that such protocols do not qualify for trade secret protection. The new protocols include new safety measures taken by SeaWorld in the wake of the death of trainer Dawn Brancheau, who was killed by an orca in February 2010.

In August, a federal judge held that the protocols were not trade secrets, and gave OSHRC a month to review the order before making the protocols publicly available. According to Judge Welsch, “The protocols that SeaWorld wants to remain under seal reflect the training methods and techniques its trainers implement poolside with the killer whales. . . An observer knowledgeable in the behavior and training of killer whales could likely ascertain the information contained in the written protocols by watching the trainers interact with the killer whales.”

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