Trade Secret Case Management Judicial Guide

427 Pages Posted: 17 Feb 2023 Last revised: 16 May 2023

See all articles by Peter S. Menell

Peter S. Menell

UC Berkeley School of Law

David Almeling

O'Melveny & Myers LLP

Victoria A Cundiff

Independent

James Pooley

James Pooley PLC

Elizabeth A. Rowe

University of Virginia School of Law

Peter J. Toren

Brown & Wood LLP

Rebecca Wexler

University of California, Berkeley, School of Law

Date Written: February 15, 2023

Abstract

As the knowledge economy expanded and concerns about trade secret misappropriation mounted in the digital age, federal policymakers undertook efforts to reinforce trade secret protection a decade ago. These efforts came to fruition with passage of the Defend Trade Secrets Act of 2016 (DTSA). This landmark legislation, modeled on the Uniform Trade Secrets Act, elevated and expanded trade secret law’s role in the federal intellectual property system. DTSA fully opened the federal courts to trade secret litigation as well as added several new features, including an ex parte seizure remedy and whistleblower immunity.

DTSA added to the large and growing federal caseloads. It also exposes more federal judges, relatively few of whom studied or litigated trade secret cases prior to their judicial appointments, to the distinctive challenges of trade secret litigation.

As with patent litigation, federal judges have implemented innovative approaches to managing trade secret litigation based on the distinctive features of these intangible resources. As with patent litigation, with its pretrial claim construction process, courts have developed practical strategies for identifying the protected trade secrets at issue. This task is complicated by the need to insulate
trade secrets from public disclosure. Moreover, trade secret law often involves requests for pretrial equitable relief, which demands additional intensive case management. Furthermore, unlike patent law, federal trade secret law includes criminal law provisions. The interplay of civil and criminal trade secret cases further complicates case management.

Drawing on the PATENT CASE MANAGEMENT JUDICIAL GUIDE (3d ed. 2016)—with chapters organized in the stages of litigation and guided by an early case management checklist—the TRADE SECRET CASE MANAGEMENT JUDICIAL GUIDE provides judges with a comprehensive resource for surveying trade secret law and managing trade secret litigation.

Keywords: trade secrets, DTSA, UTSA, case management, civil procedure

Suggested Citation

Menell, Peter S. and Almeling, David and Cundiff, Victoria A and Pooley, James and Rowe, Elizabeth A. and Toren, Peter J. and Wexler, Rebecca, Trade Secret Case Management Judicial Guide (February 15, 2023). Available at SSRN: https://ssrn.com/abstract=4360102 or http://dx.doi.org/10.2139/ssrn.4360102

Peter S. Menell (Contact Author)

UC Berkeley School of Law ( email )

2240 Bancroft Way
Berkeley, CA 94720-7200
United States

David Almeling

O'Melveny & Myers LLP ( email )

Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
United States
4159848700 (Phone)
4159848701 (Fax)

Victoria A Cundiff

Independent ( email )

James Pooley

James Pooley PLC ( email )

325 Sharon Park Drive #208
Menlo Park, CA 94025
United States
6502858520 (Phone)

HOME PAGE: http://www.pooley.com

Elizabeth A. Rowe

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

HOME PAGE: http://www.law.virginia.edu/faculty/profile/nfy9vk/3077792

Peter J. Toren

Brown & Wood LLP ( email )

One World Trade Center
New York, NY 10010
United States
212-839-7357 (Phone)

Rebecca Wexler

University of California, Berkeley, School of Law ( email )

691 Simon Hall
Berkeley, CA 94720
United States
510 664 5258 (Phone)

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