The DTSA: Happy Birthday, Data Data Everywhere, But Where’s The Common Sense?

The Defend Trade Secrets Act (DTSA) just celebrated its first birthday. Many of you know that because just about everybody is using 365 days as a reason to write about the DTSA.

Whether armed with a birthday or anniversary or some other real or perceived data point, pundits repeatedly are trying to explain the DTSA, if not the legal system, with data. That is a superficially appealing idea, especially for people who accept data as a purely objective measuring stick.  But, think about this: in a baseball game, who is the better hitter? The player who hits three frozen ropes that are caught and is 0-3, or the player who hits a dribbler, a bloop and a swinging bunt and ends up 3-3?  The same rationale applies to law; if you think you can glean what really happened when a statute was enacted and since merely because of numerical compilations of actions or outcomes, you do so at your own risk. You are looking at snapshots, texts and Tweets and not the full motion picture.   

With that, let’s look at what can be, what is and what is not when it comes to trade secrets and the DTSA. 

Trade secrets can be competitively valuable information (CVI). Let me repeat, can be. Not are. That is not lawyer-speak. That is reality – meaning, trade secrets can be CVI if they are properly identified and protected. And that means now. Not when or after you believe that someone has misappropriated them and not when or after a new statute (e.g., the DTSA) is enacted.   

The DTSA did not wave a magic wand over assets and make them viable trade secrets to be asserted in federal courts. The DTSA is a tool to protect trade secrets, a tool that facilitates access to federal courts and a tool that allows attorneys to work in an arena with which they are familiar, i.e., an arena where the Federal Rules of Civil Procedure and Federal Rules of Evidence apply.

Where on the “Goldilocks and the Three Bears” scale the DTSA falls misses the real point. Whether the number of DTSA cases has been too many, too few or just right, and whether certain relief (e.g., ex parte seizures and injunctions) has been sought or granted, is not what an owner of potential trade secrets ought to be concerned with. The real point is this: as an owner of potential trade secrets, what have you done about your potential CVI in the last year?

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