Lack of specificity when describing alleged trade secrets has long been the bane of defendants in trade secrets cases. Long laundry lists of alleged secrets or general claims to whole areas of information can seriously hinder a defendant’s ability to formulate its defense and dispose of meritless claims. A new wave of cases, however, may change that, serving as a warning to holders of trade secrets and offering an important opportunity to those accused of misappropriating them.
The threshold question in every trade secret case, of course, is whether or not there is a trade secret to misappropriate. What is not so easy to determine, however, is when a plaintiff claiming that its trade secret has been stolen must identify the alleged secret. Courts are often faced with a chicken-and-egg problem, whereby on the one hand, an accused defendant insists on a clear articulation of the trade secrets it is alleged to have misappropriated before it is required to engage in costly discovery, and on the other hand, a plaintiff resists articulating the precise trade secrets that have been misappropriated until after it has had a chance to conduct some discovery of the defendant.
