Navigating Trade Secret Identification During Discovery: Timing & Scope

A trade secret derives its value by being kept secret, yet a trade secret owner is required to identify its trade secret at some point during litigation to apprise the defendant as to what information was allegedly misappropriated. This creates an inherent tension between secrecy and disclosure that is not found in litigating other types of intellectual property rights (particularly patents). Neither the Uniform Trade Secrets Act ("UTSA")—on which most state trade secret laws are based—nor the federal Defend Trade Secrets Act ("DTSA") includes specific procedural requirements for the timing or scope of disclosure. Instead, the timing and scope of trade secret identification often varies by jurisdiction, and even by judge in the same jurisdiction. Timing can range from before the opening of formal discovery to throughout fact discovery. And the scope of disclosure deemed sufficient varies as well, with some jurisdictions providing a codified scope standard, whereas others have no working definition of what constitutes sufficient scope. Even with the passage of the DTSA in 2016, there is not a unified approach to the timing and scope of trade secret disclosure in federal courts. Thus, parties should carefully consider trade secret disclosure requirements generally followed in a jurisdiction, both before a case is filed and during litigation.

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