The identification of trade secrets in misappropriation litigation is a critically important and evolving area of trade secret law. Not surprisingly, it is the subject of widely divergent and conflicting approaches taken in different states and by different courts and judges.
The Sedona Conference’s working group on trade secrets has created a draft Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases that will hopefully bring clarity, and perhaps even consistency, to the issue.
The draft Commentary explains it best:
The burden is on the party asserting trade secret misappropriation to answer this question by “identifying” the alleged trade secrets. hile this requirement for “identification” is ubiquitous, the rules for doing so are not clear or consistent. At the federal level, neither the criminal statute (Economic Espionage Act) nor the civil statute (Defend Trade Secrets Act) explicitly addresses identification. At the state level, California and Massachusetts define certain, but not all, aspects of identification by statute, while other states set out certain rules in case law, and a few states appear yet to have addressed the issue.
The Sedona Conference’s Working Group 12 (WG12) resolved that its first commentary on trade secret law would address the identification question. This commentary represents 12’s views about certain aspects of identification, including when an identification must be provided, what an identification must contain, and how an identification can be amended. The proposals below and across our WG12 commentary drafting team efforts are not intended to displace current law, which is diverse with respect to numerous substantive and procedural issues in trade secret law and litigation, and thus often does not lend itself to the development of more authoritative Best Practice recommendations. Rather, they are intended to summarize 12’s consensus Principles and Guidelines regarding the identification of alleged trade secrets in trade secret litigation, which if adopted in whole or in part would advance he Sedona Conference’s mission, “moving the law forward in a reasoned and just way.”
If you are interested in this important issue, there will be webinar to discuss the draft Commentary and seek public comment on Wednesday, May 20 at 1 p.m. EDT. You can register here. And, comments can be submitted through August 1, 2020, to firstname.lastname@example.org.