In Part 1 of this article, we looked at the history of California Code of Civil Procedure §2019.210, the statutory framework unique among state and federal trade secret laws that requires trade secret plaintiffs to identify the misappropriated trade secrets before discovery commences. We also examined one of the three cases—Advanced Modular Sputtering—that provide some guidance on what is required in a trade secret identification. In Part 2, we look at the two other cases and the application of §2019.210.

Brescia v. Angelin. In Brescia v. Angelin (2009) 172 Cal. App. 4th 133, decided in 2009, the appellate court considered the sufficiency of a designation relating to a protein pudding. Plaintiff Brescia alleged that Sylvester Stallone and other defendants misappropriated Brescia’s high protein, low carbohydrate pudding. Brescia first sought to identify the trade secret by referring to a large set of documents in his complaint.  This was inadequate, and Brescia served a new trade secret statement in which Brescia grouped the alleged secrets into the categories of “Marketing Strategies,” “Budget and Finance,” “Formula,” and “Manufacturing Process.” Each category referred to attached documents (totaling 305 pages) that “specifically detailed each and every trade secret.” The trial court again found the designation inadequate because “by citing to voluminous documents, it obscured rather than refined the description.” The court objected to the Brescia’s “surplusage” and to what it viewed as “essentially hiding the alleged trade secret in plain view by putting lots of clutter around it.” Brescia served a new designation identifying 15 ingredients, their relative percentages, and the manufacturing process, including each step in the mixing, testing, and code marking of the pudding. at 141. Defendants challenged the sufficiency of the statement, arguing that Brescia had not distinguished his formula or manufacturing process from matters known to people in the commercial food science field, and the trial court agreed.