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One of the ways trade secret disputes differ from other IP litigation is that in a trade secret dispute it is not always clear what the intellectual property actually is. Trade secrets aren’t disclosed to the patent office or registered like trademarks. Nor are they as clearly defined as copyrights. Thus, a threshold question in every trade secret case is what the trade secrets actually are. This creates a natural tension, as the very definition of a trade secret includes that it be kept secret. Nonetheless, litigation cannot proceed in the dark and there must be some disclosure at some time before a case can be meaningfully resolved. Courts vary widely in their approach to the what and the when of these disclosures. Some require detailed specificity before any discovery can occur, sometimes even at the pleading stage. Other courts are more lenient and will allow discovery to proceed without first requiring early and detailed disclosures.

The Sedona Conference, a research and educational institute dedicated, in part, to the advanced study of law and policy in the area of intellectual property rights, has proposed four principles to balance these competing concerns in its Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases. The principles are as follows:

(1) the identification of an asserted trade secret during a lawsuit is not a decision on the merits and may not serve as a substitute for discovery;

(2) the party asserting misappropriation of a trade secret should identify the alleged trade secret in writing at an early stage of the litigation;

(3) the party claiming the existence of a trade secret must identify the asserted trade secret at a level of particularity that is reasonable under the circumstances; and

(4) a party may amend the identification of an alleged trade secret as the litigation progresses.

The Sedona Conference Commentary is open for comment. The principles are just that—principles, so the key work will be in their application. But these principles may help make questions about trade secret identification more predictable.