Vexing Issues in Trade Secret Cases

A cause of action for misappropriation of trade secrets, though in some ways a typical business tort, has the potential to implicate a wide variety of legal issues. Depending on the particular facts, a trade secret claim potentially could draw on the law of contracts, employment, and intellectual property. Most jurisdictions have adopted the Uniform Trade Secrets Act (UTSA), which provides businesses with some predictability and uniformity in trade secret law. The recently-passed Defend Trade Secrets Act of 2016 (DTSA), which President Barack Obama is expected to sign, likely will promote additional uniformity.

Yet despite this uniformity, the amalgamation of issues that exist in some trade secret cases can present special challenges. The purpose of this article is to discuss two stages of litigation when those challenges typically arise: at a case's inception and at its conclusion. The first section describes the importance of identifying the alleged trade secret with sufficient specificity and some of the difficulties that attend to that endeavor. The second section discusses some difficulties in identifying and applying the appropriate measure of damages, a particularly thorny issue in New York, which, as one of two states not to have not adopted the UTSA, relies exclusively on common law.

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