provisions of the DTSA:
to issue an order to provide for
seizure of property necessary to
preserve evidence or to prevent the
propagation or dissemination of
the trade secret. Such an order is
only to be issued in "extraordinary"
circumstances. It must be based on
an ex parte application sworn by
an affidavit or verified complaint.
An ex parte applicant must show
that a temporary restraining order
would be inadequate, immediate
and irreparable harm would occur
without the order, likelihood of
success on the merits of the case,
can describe the items to be seized
with reasonable particularity, and
must show absent the order the items
would be destroyed, moved, hidden
or otherwise made inaccessible. Any
items seized shall be taken into the
possession of the court.
interpretation of extraordinary
circumstances. However, as the
seizure order can be entered ex
parte, your client will not even have
a chance for redress until the seizure
has already occurred. Moreover,
as the items are to be taken into
the possession of the court, such a
seizure could be challenged as a
governmental taking, which requires
the payment of compensation.
immune from the act if they are
disclosed in confidence to a federal,
state, or local government official,
or to an attorney, for the purpose of
reporting or investigating a suspected
violation of the law, or in a complaint
or other document filed under seal in
a judicial proceeding.
know the specifics of a trade secret
before accessing the viability of
a claim or entering an order, the
requirement to file documents in
judicial proceedings under seal also
undercuts the public's right to access
court documents. Moreover, it may
be difficult for a court to issue an
opinion providing sufficient guidance
for other parties if the specific facts of
the claim cannot be published.
exception. An individual can disclose
the trade secret to an attorney and file
with the court if filed under seal in a
retaliatory firing suit for reporting a
suspected violation of law.
is not actionable if it is obtained
through lawful means. A party can
obtain trade secret material if it is
done through reverse engineering,
independent derivation, or any
other lawful means of acquisition.
Thus, the DTSA does not add any
additional protections to the scope
of trade secrets, it merely provides
an additional tool to enforce trade
secret rights.
enumerated constitutional right to
trade secret protection, the DTSA
was enacted under the commerce
clause. Thus, the trade secret at issue
must be used or intended to be used
in interstate or foreign commerce. A
particular note should be made that
the use in commerce must be related
to the trade secret itself, not the
intended disclosure.
Navigating the DTSA
regarding how employers can position
themselves to handle DTSA.
in place to verify the source of an
establishing trade secret ownership
rights to bring a cause of action.
of the value of your trade secret,
including research and design
expenses and other costs so that it
will be easier to demonstrate damages
in the event of misappropriation.
secrets as the statute of limitations
to bring a claim of misappropriation
is three years from when
misappropriation is discovered or
should have been discovered by the
exercise of reasonable diligence.
employees who suspect a violation of
the law. In order for an employer to
obtain exemplary damages or attorney
fees against an employee who has
misappropriated trade secrets, the
DTSA requires that the employer
give proper notice of the immunity
provision of the DTSA and provide
a proper reporting policy for a
suspected violation of the law.
affect companies' intellectual property
rights and obligations. Hopefully, this
article will give you an understanding of
the impact of the DTSA on companies,
as innovators, manufacturers and
employers.
3 See www.uniformlaws.org/ActSummary.
5 See www.uniformlaws.org/LegislativeFactSheet.