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It has been a year since a new federal law was enacted that further helps to protect trade secrets. Still, there are continuing concerns about the need to keep trade secrets private during e-discovery. The Defend Trade Secrets Act (DTSA) of 2016 provides two new protections to owners of trade secrets: A court may require affirmative actions to protect a trade secret, and in criminal proceedings, the court may not authorize or direct the disclosure of any information the owner says is a trade secret unless the court allows the owner the opportunity to file a submission under seal that describes the interest of the owner in keeping the information confidential. The DTSA has been applied in many ways, particularly as a source for litigation in the tech industry.

But many counsel are seeking to extend those protections to e-discovery. To further encourage secrecy, David Stanton, an attorney at Pillsbury Winthrop Shaw Pittman, told Legaltech News that for the most sensitive data, “we are advising clients to consider hosting it themselves, and allowing it to be inspected rather than producing and losing control to a third party.”

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