The Trend Toward Requiring Plaintiffs to Identify Trade Secrets Early in Litigation

A good article in BNA by Eric W. Schweibenz and Lisa M. Mandrusiak argues that the recent trend in trade secret litigation has been to require plaintiffs to state with specificity early in litigation what trade secrets they claim the defendants stole.  This prevents “fishing expeditions,” where plaintiffs bring vague claims for misappropriation of trade secrets in the hope that they’ll find something solid when they obtain documents and other information from defendants in discovery.  It also helps defendants decide what is relevant when responding to discovery requests from plaintiffs and helps defendants prepare a defense.  Ultimately, the requirement can help resolve cases faster because the defendants know earlier what the case is about and the strength of their defense.

This requirement should make employers that are considering suing former employees for misappropriation of trade secrets think before they file.  I’ve written about this before, but it bears repeating: if an employer is going to accuse an employee of stealing trade secrets, it better have a good idea of what those trade secrets are.  If the employer doesn’t, that fact can really slow down, and even stop, a case before it really gets started, and the employer will lose a good deal of credibility in the judge’s eyes.

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