Since May 11, 2016, owners of trade secrets have been able to pursue remedies against alleged misappropriators in federal court under the Defend Trade Secrets Act (DTSA). The first article in this two-part series assessed how courts have evaluated the sufficiency of allegations in complaints filed under the DTSA and proposed steps to avoid unnecessary pitfalls. This article explores how courts have treated the trade secret holder’s disclosure obligations in cases brought under the DTSA, including whether, when, and how the “reasonable particularity” standard has been applied. Finally, this article provides practice tips for navigating discovery under cases brought under the DTSA.
Offensive Versus Defensive Discovery
Among the most critical issues for trade secret holders under the DTSA is whether, when, and how to disclose allegedly misappropriated trade secrets. As noted in the first article in this series, at the outset of the case, the complaint must put the defendants on notice of what is at issue but need not disclose trade secrets, for the simple reason that disclosure in a public complaint would destroy those trade secrets.
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