August 20, 2015 Articles

Betwixt and Between: Finding Specificity in Trade Secret Misappropriation Cases

The trend across the nation appears to be not requiring heightened pleading and instead permitting pre-discovery identification of the trade secrets.

By Eric D. Welsh

Trade secret misappropriation cases create a unique problem for courts. The parties become quickly embroiled in litigation over the misappropriation of trade secrets, sometimes with only bare-bone allegations of those trade secrets having been pled in the first place. Defendants, in many cases, are left trying to defend against claims that are vague and uncertain, putting them at a distinct disadvantage early in the case, especially when they are defending against morphing allegations of what was misappropriated. Plaintiffs resist the prompting to provide more detail out of concern over inadvertent disclosure and the fear that providing such detail may cut off discovery of the extent of the defendants’ transgressions due to a lack of knowledge of the full extent of the misappropriation. The stakes on both sides of a misappropriation case are high, and the pressure is on the courts to find the right path forward.

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