Trying a Trade Secret Case: Identification, Protective Orders, and the Proof Problem
By Casey Scott McKay ·
A trade secret case is unlike any other intellectual property case because the plaintiff must describe the thing it is suing over without destroying it, and must do so before it knows what the defendant took. This article explains the identification requirement that governs the first months, the elements of a misappropriation claim under the federal and state statutes, what counts as reasonable measures and improper means, and how protective orders and attorneys-eyes-only designations make the case triable. It covers the extraordinary remedies — ex parte seizure and preliminary injunctions — and the proof problem at the center of every one of these cases, which is that the defendant's use is invisible and its independent development story is usually available. It closes with damages, the immunity provision that must appear in every agreement, and preemption of overlapping claims.
IP and Technology > Trade Secrets | Article | Published 24 June 2026 - Updated 12 July 2026 | Casey Scott McKay - marksy.us
Summary. A trade secret case is unlike any other intellectual property case because the plaintiff must describe the thing it is suing over without destroying it, and must do so before it knows what the defendant took. This article explains the identification requirement that governs the first months, the elements of a misappropriation claim under the federal and state statutes, what counts as reasonable measures and improper means, and how protective orders and attorneys-eyes-only designations make the case triable. It covers the extraordinary remedies — ex parte seizure and preliminary injunctions — and the proof problem at the center of every one of these cases, which is that the defendant's use is invisible and its independent development story is usually available. It closes with damages, the immunity provision that must appear in every agreement, and preemption of overlapping claims.
Keywords: trade secret identification, reasonable particularity, Defend Trade Secrets Act, misappropriation, improper means, reasonable measures, protective order, attorneys eyes only, ex parte seizure, preliminary injunction, inevitable disclosure, forensic evidence, independent development, reverse engineering, unjust enrichment, reasonable royalty, exemplary damages, whistleblower immunity, statute of limitations, preemption
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