One of the more challenging questions in many complex trade secret cases is: When should a plaintiff be required to identify its alleged trade secrets, and with what level of specificity? This question is not answered by the Defend Trade Secrets Act or (in most instances) state trade secret statutes, and case law on this topic varies across the country. This uncertainty creates risk, delay, and expense.

Perhaps a common set of local rules for identification in trade secret cases would help? The Sedona Conference proposes just that in Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases, which was recently published for public comment. The Commentary sets out four guiding principles: (1) the identification of an asserted trade secret during a lawsuit is not an adjudication of the merits and is not a substitute for discovery; (2) the party claiming misappropriation of a trade secret should identify in writing the asserted trade secret at an early state of the case; (3) the party claiming the existence of a trade secret must identify the asserted trade secret at a level of particularity that is reasonable under the circumstances; and (4) the identification of an asserted trade secret may be amended as the case proceeds.

We encourage companies with trade secrets and practitioners to review the Commentary carefully. It is available for download here.

The Commentary requests that all comments be submitted by August 1, 2020, to