Identifying Trade Secrets in Early Litigation Is a Tricky Task

As the Defend Trade Secrets Act, or DTSA, approaches its 10th anniversary, practitioners and courts are still wrestling with how a plaintiff must identify its alleged trade secrets before discovery begins.

It is particularly difficult when comparing the DTSA with state statutes, such as California’s Uniform Trade Secrets Act, or CUTSA, which requires pre-discovery identification with “reasonable particularity.”

The outcome of Quintara Biosciences v. Ruifeng Biztech prompts a look at how courts across key markets approach trade secret designations in the discovery phase of litigation.

Ninth Circuit Clarity

Quintara involved a dispute between two California DNA sequencing companies. Plaintiff alleged nine categories of trade secrets under the DTSA. Because the case was brought only under the DTSA, the US District Court for the Northern District of California wasn’t required to apply CUTSA’s pre‑discovery designation rule but did so anyway.

Quintara was ordered to provide, under seal, a description of each trade secret, including its economic value, the efforts taken to maintain its secrecy, and a list of specific elements for each secret. Citing Rule 12(f) of the Federal Rules of Civil Procedure, the district court struck all but two trade secrets for lack of specificity, effectively dismissing most of the DTSA claim. A jury later ruled for Ruifeng, and Quintara appealed.

The US Court of Appeals for the Ninth Circuit reversed. It held that unlike CUTSA, the DTSA doesn’t require early particularized disclosure, and whether a plaintiff has adequately identified a trade secret is a factual question typically resolved at summary judgment or trial.

Quintara provides some clarity, at least in the Ninth Circuit. But a delicate balance remains in trade secrets cases between a plaintiff needing to prove theft while protecting the secret and providing a defendant with enough detail to be able to defend itself.

An understanding of how courts in various jurisdictions handle trade secret descriptions is increasingly important for today’s trade secrets litigator, particularly because trade secret litigation is often across state lines.

Pre-discovery Designation

California stands nearly alone in codifying a pre-discovery burden for trade secret plaintiffs. It requires that discovery relating to a trade secret cannot begin until the trade secret is identified with reasonable particularity.

Three rulings from the Court of Appeal of California, Fourth District, are illustrative. Advanced Modular Sputtering v. Superior Court held that a trade secret designation must be “fair, proper, just, and rational,” not exhaustive or highly technical. In Brescia v. Angelin, the plaintiff’s description of a pudding formula, listing ingredients and steps of the mixing and testing process, was deemed sufficient, while Perlan Therapeutics, Inc. v. Superior Court affirmed a trial court’s rejection of identification of broad, undifferentiated categories.

Massachusetts also requires early disclosure under its trade secrets statute, MUTSA. But the pre-designation requirement was applied before the statues took effect, as in L-3 Communications Corp. v. Reveal Imaging Technologies, Inc., where the court required a detailed statement distinguishing proprietary information from general technical knowledge.

More recently, in Cynosure, LLC v. Reveal Lasers LLC, the US District Court for the District of Massachusetts held that designations covering customer pipeline data, pricing lists, and nonpublic marketing materials were adequate because they allowed defendants to understand the nature of the claims.

Illinois does not impose a statutory pre-discovery requirement but has long required plaintiffs to specify alleged trade secrets before discovery. In Triangle Ink & Color Co. v. Sherwin-Williams Co., the Northern District of Illinois in 1974 held trade secret status “need not bar discovery,” but discovery should proceed under protective conditions to avoid unnecessary disclosure. In 2001, the court held in AutoMed Techs., Inc. v. Eller that broad references to “software and technology” were insufficient to identify the misappropriated secrets.

Under the Texas Uniform Trade Secrets Act, or TUTSA, courts require enough detail to permit fair discovery, but rely on judicial discretion. In United Services Automobile Ass’n v. Mitek Systems, Inc., the Western District of Texas in 2013 required the plaintiff to itemize each alleged trade secret and explain how each differed from publicly available information before discovery. In 2024, the Northern District of Texas held in Centennial Bank v. Holmes that plaintiff provided sufficient detail by offering eight defined categories of confidential business information and describing measures taken to protect their secrecy.

Courts in New York routinely require plaintiffs to describe trade secrets with enough specificity to give fair notice and prevent discovery from becoming a fishing expedition. In Big Vision Private Ltd. v. DuPont, the Southern District of New York dismissed claims where plaintiff identified only broad categories of technical know-how, holding that trade secrets must be defined with precision and separated from public information. Likewise, in Zirvi v. Flatley, the court dismissed DTSA and state claims because descriptions of “research data” and “negative trade secrets” were too vague to show secrecy or value.

The Bottom Line

While they vary in application, a common theme in the approach of courts across jurisdictions is that trade secret identification is highly fact‑dependent. These cases may influence decisions about which claims to assert, where to file a lawsuit, and other litigation strategies. It remains best practice for parties to be able to identify what intellectual property they deem to be a trade secret and what makes it a trade secret, as a general part of their business as well as at any stage of litigation should it arise.

To facilitate an effective trade secret designation in any future trade secret litigation, it’s helpful to periodically confer with engineers, scientists, or other employees in the business who work with trade secrets. They can help identify, log, and understand independent development, as well as marking confidential materials, limiting access on a need-to-know basis, keeping documentation of the measures used to preserve secrecy, and identifying employees who can attest to the above if needed. This and other similar approaches can reduce disputes, strengthen credibility before the court, and minimize the risk of early dismissal or narrowed claims during litigation.

The case is Quintara Biosciences v. Ruifeng Biztech, 9th Cir., 23-16093, Opinion 8/12/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Eric Akira Tate is co-chair of Morrison Foerster’s global employment and labor practice in San Francisco.

Zoe Escarcega is an associate at Morrison Foerster and member of its employment and labor group in Los Angeles.

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