Local Rule LR 26.3: Initial Disclosures in Misappropriation of Trade Secret Cases

LR 26.3 Initial Disclosures in Misappropriation of Trade Secret Cases Except as otherwise ordered by the court, in addition to the initial disclosures required by FRCP 26(a), a party asserting that any trade secrets have been misappropriated must file under seal a Trade Secrets Identification Statement before trade-secret-related discovery begins.

(A) Identification of Asserted Trade Secrets. A party claiming the existence of a trade secret must, before merits discovery begins (or, subject to paragraph D below with a motion for preliminary relief) identify in writing and serve on the parties, with a level of particularity that is reasonable under the circumstances, each asserted trade secret.

The required particularity of this identification differs from what may be adequate in a publicly filed pleading under applicable pleading rules such as FRCP 8. It must be sufficiently particularized to allow the other party to meaningfully compare the asserted trade secret to information that is generally known or readily ascertainable and to permit the parties and the court to understand what information is claimed to be the trade secret.

The identification should separate, to the extent practical, distinct trade secrets into numbered paragraphs. A document may be appended as a supplement to the identification but may not be used as a substitute for the identification unless the document itself is claimed to be the trade secret. In cases where an entire document or portions thereof constitute the trade secret, the written identification must identify the content in such document or portions thereof in language sufficient to meet the standards herein.

(B) Amendments. A party that has provided an initial identification under paragraph A above may amend that identification upon the agreement of the parties or upon motion establishing good cause.

(1) Prior to any motion to amend, the parties must confer regarding the timing and terms of the proposed amendment. If the parties are unable to reach an agreement, the party proposing the amendment may apply to the court for an order allowing the proposed amendment.

(2) In determining whether to grant leave to amend the identification, the court shall consider whether the party seeking amendment was diligent and whether the party opposing amendment would be unduly prejudiced by the amendment considering, among other factors, whether the proposed amendment is based on discovery of newly learned facts, the stage of the litigation, whether the amendment will expand discovery and/or delay the trial date, and whether the amendment adds, removes, or materially modifies asserted trade secrets or merely clarifies an existing identification.

(C) Verification. The identification of each asserted trade secret shall be verified under oath or affirmation by the individual or one or more employees or officers of the party asserting trade secret misappropriation.

(D) Applications for Preliminary Relief. Where a party has evidence that an opposing party improperly downloaded or otherwise took documents, things or information from the party, and the party files a lawsuit that includes a trade secret misappropriation cause of action, and then, by motion, seeks an early court order requiring only that the defendant (1) preserve evidence; and/or (2) return the specific documents, things or information allegedly taken, the moving party is not required to prepare or serve a Trade Secret Identification Statement that complies with paragraph A above prior to seeking such preliminary relief. In all other situations in which a party asserting trade secret misappropriation seeks preliminary relief, the moving party must comply with paragraph A as to the trade secrets for which it seeks early injunctive relief to the extent it has not already done so. This paragraph is subject to FRCP 65(d) or state law equivalents and other applicable statutory requirements.

[Adopted January 1, 2024]