Identifying Trade Secrets in Early Litigation Is a Tricky Task

Eric Tate and Zoe Escarcega wrote this article for Bloomberg Law about the complexities of identifying trade secrets in early litigation, particularly under the Defend Trade Secrets Act (DTSA) and various state statutes. The authors discuss how the Ninth Circuit clarified that the DTSA does not require early particularized disclosure of trade secrets, contrasting this with California’s stricter “reasonable particularity” standard and highlighting differing approaches in other states such as Massachusetts, Illinois, Texas, and New York. The article emphasizes that trade secret identification is highly fact-dependent and remains a critical strategic consideration for litigants, influencing where and how claims are asserted. Best practices include regular internal review and documentation of trade secrets to strengthen litigation positions and minimize risks of early dismissal or narrowed claims.

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