November 30, 2018 Articles

Better Safe Than Sorry: Experts Should Apportion Damages in Trade Secret Cases

In trade secret misappropriation cases, experts should consider apportioning damages on a trade-secret-by-trade-secret basis; otherwise, they risk exclusion

by Travis S. Hunter and Renée M. Mosley

Trade secret claims commonly involve large-scale litigation with millions of dollars at stake. Heightened competition and increased employee mobility in certain industries have resulted in an explosion of trade secret litigation in recent years. See Bradford K. Newman, “Protecting Trade Secrets,” 17 Bus. L. Today, Nov./Dec. 2007. It is expected that trade secret cases will continue to increase, given the passage of the federal Defend Trade Secrets Act, 18 U.S.C. § 1836 (2016) (DTSA), two years ago. In total, there have been 1,104 new cases filed with DTSA claims in the two years since the DTSA became law, according to Docket Navigator. Twenty-one cases have been filed in the U.S. District Court for the District of Delaware, and most of these cases are either in the discovery stage or have been voluntarily dismissed. Id.

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