Driving down the i-85 highway just outside commerce, georgia, it is impossible to miss the us states newest industrial megasite a 2.4m square foot battery plant being built by south koreas sk innovation.
Pledging $2.6bn to the project, ski is making the largest single investment in georgias history, promising to transform the south-eastern state into one of the worlds leading hubs for electric vehicle batteries.
Yet even before the factory gates open, the plants fate is being called into question by a bitter feud over trade secrets.
The us international trade commission will decide next month whether to uphold preliminary findings that ski deliberately destroyed thousands of documents suggesting it had illegally acquired sensitive technology from korean arch-rival lg chem, the worlds largest lithium-ion battery maker.
If the ruling goes against us, substantial difficulties are expected, said lee byoung-rae, ski general counsel.
The itc is limited to banning the import of goods it deems the result of trade secret theft. a decision against ski, which denies any wrongdoing, could prevent the company from shipping in materials needed to start production at the new site jeopardising its promise to create 2,600 jobs.
The final ruling is also filed as evidence in the multibillion-dollar civil lawsuit that was launched alongside the itc case.
The stakes are not only high for ski.
The investment is so key to us electric vehicle ambitions that wilbur ross, the us secretary of commerce, visited the site last year to pick up a shovel for the groundbreaking ceremony.
Ford and vw, which have contracts to take batteries from the factory, face disruption to vital supplies for new electric and hybrid models.
But the itcs findings may also have global implications. the agency has become a powerful tool in trade secret cases even when the dispute is between foreign companies, involving acts onforeign soil.
The itc is being used as a vehicle for extraterritorial enforcement of us trade secret principles, said sharon sandeen, law professor and director of the ip institute at the mitchell hamline school of law.
Some companies have even turned to the itc to hobble competition, according to elizabeth rowe, law professor at the university of florida and author of textbooks on intellectual property.
The us tends to be the largest market for a lot of these kinds of goods, she said. the ability to keep somebody out of the us market can be the strongest remedy.
Competition between ski and lgc has certainly intensified. lgc sued five engineers in 2017 to stop them joining ski, which had begun to expand its battery business. lgc won the case but over the next two years about 80 more key employees moved to ski.
When lgc looked into the computers of some who had left, alarm bells rang. we...found their presentation materials for interviews with ski. and the presentation materials included some of our trade secrets, said min kyung-hwa, lgcs head of ip.
According to lgc, ski was encouraging candidates to bring confidential information and technical presentations to interviews.ski shared this information with relevant teams, according to other emails.
Ski denied the allegations. as for any company looking to hire in a technical field, ski was looking for people with relevant...expertise, said sturgis sobin, partner at covington & burling, the companys washington-based lawyers. in the interviewing process ski carefully evaluated the experience of all applicants...the only question is, was there anything illegal about what took place? we firmly believe there wasnt.
But in november 2018 a bombshell dropped. vw announced it would place a hotly contested multibillion-dollar battery contract with ski. a few months later ford followed suit.
We believethey obtained contracts with customers they never would have had if they had not stolenlgcstechnology, said song jung, partner at dentons, lgcs us law firm.
In early april 2019 lgc sent a letter to ski in korea threatening legal action. three weeks later it filed its civil suit in delaware and its itc case.
The itc suit sparked a discovery process in which ski was asked to hand over all relevant documents to lgc. it soon became apparent that weeks before, the day lgc sent its letter, ski had ordered documents to be deleted in what it says was a routine security sweep.
Yet traces were left behind. lgc found files in the recycle bins of ski computers that shed light on internal actions after the letter was received, as well as information brought to the company by its new hires.
Days after the letter, employees were asked by email to delete documents containing keywords including lg or l company as they could be misunderstood, according to filings. if documents had to be handed over, they were told to be sure to delete the company name from the title and content. finally, they were instructed to delete this email after confirming and handling it.
On april 30, the day after the lawsuits were filed, employees were asked to delete as soon as possible material related to the rival company from every single individuals pc, mail storage archives and team rooms, and to especially scrutinise skis us subsidiary skba.
Pcs may even be subject to seizure and examination, they were told. delete this email after completing this directive.
Only later that day were employees asked to preserve documents, but no effort was made to recover any deleted material.
Other emails revealed that job candidates had brought more to ski than experience. in one, sent in 2018, an ex-lgc employee attached his former employers core manufacturing recipes for 57 kinds of ev battery, according to mr min.
Ski insists there is no evidence it deliberately misappropriated trade secrets, either through its hiring process or otherwise. ip experts say any claim of trade secret theft could be difficult to prove.
Trade secrets are not like patents, where infringement is comparatively easier to prove, according to jacques de werra, ip law professor at the university of geneva law school. and highly skilled employees cannot be prohibited from changing jobs.
This challenge of employee mobility vs trade secret protection frequently arises in niche technologyindustries whereemployees can havea very special expertise, he said.
Ski also denied that documents were deleted to hide violations. it was part of our regular documents review for internal compliance, said mr lee. we just got rid of a small part of all documents and most documents still exist.
The company argued that under south korean law there was no obligation to preserve documents. by contrast, us law requires preservation if there are reasonable grounds to believe a lawsuit is likely.
We had no idea that lg was going to sue us in the us, mr lee said. the documents review in early april was just to prepare for possible litigation in future.
Moreover, the number of documents binned after the us case was launched was very small and did not justify the scale of sanctions demanded by lgc, mr sobin said.
However, in februarys preliminary ruling the itc judge hearing lgcs complaint found that ski could have anticipated us litigation, that it was culpable of intentional destruction, and had been contemptuous of the discovery process by withholding information.
The prejudice to lgc was palpable, the judge said, as he granted the companys claim for a default judgment and found there were grounds to penalise ski.
Ski has challenged the finding at the itc, which can only impose sanctions if it finds that trade secret violations harm an us industry.
Among all the issues the judge failed to properly address, one of the most important was how anything that was allegedly deleted was really material to the question of injury, mr sobin said.
The commission will decide by october 26 whether to uphold the ruling or send the case back for review. even if it goes back, trade lawyers say, it would be unusual for the finding to be entirely overturned.
Assuming the two sides cannot settle before the ruling, ski says it will fight to the end. if the decision is adverse to us we will appeal, mr sobin said. it may even seek help from the white house, which has the power to veto itc sanctions.
Meanwhile, it is pushing ahead with plans to start producing trial batteries from the commerce plant next year. as of last week, it had hired 60 employees.
Georgia officials hope they will not be the last.
Its a terrific opportunity for us, said bert brantley, head of the states department of economic development. regardless of what happens, we hope that the project will go forward. it could be very meaningful for a lot of georgians and their families.