Recent Developments in Trade Secret Identification Litigation

I. Introduction

Courts around the country agree that in a suit alleging trade secret misappropriation under the federal Defend Trade Secrets Act (“DTSA”), a plaintiff must identify their claimed trade secrets with sufficient particularity. See, e.g., InteliClear, LLC v. ETC Glob. Holdings, 978 F.3d 653, 658 (9th Cir. 2020); Double Eagle Alloys, Inc. v. Hooper, 134 F.4th 1078, 1088-89 (10th Cir. 2025); Syntel Sterling Best Shores Mauritius Ltd. v. The TriZetto Grp., Inc., 68 F.4th 792, 800-01 (2d Cir. 2023); IDX Systems Corp. v. Epic Systems Corp., 285 F.3d 581, 584 (7th Cir. 2002). Nevertheless, the DTSA does not provide a specific procedure for when and how identification of asserted trade secrets should occur during litigation. Federal appellate courts have recently devised different approaches as to when a trade secret plaintiff must specify its asserted trade secrets with sufficient particularity. Compare Quintara Biosciences Inc. v. Ruifeng Biztech Inc., 149 F.4th 1081, 1091 (9th Cir. 2025) (finding DTSA plaintiff does not need to identify its trade secrets with “sufficient particularity” until after some discovery) with Sysco Machinery Corp. v. DCS USA Corp., 143 F.4th 222, 229 (4th Cir. 2025) (holding a DTSA plaintiff needs to identify trade secrets with “sufficient particularity” at the pleading stage).

A fiercely contested issue in almost every case involving a claim of trade secret misappropriation is: what are the trade secrets at issue in this lawsuit? This is different than other categories of intellectual property, such as patent or copyright, where the intellectual property is registered with a regulatory body. But more than just the level of particularity with trade secrets must be identified, a key battleground has become when trade secret identification must occur in the litigation. When a plaintiff is required to identify their claimed trade secrets with particularly has significant consequences for both the plaintiff and defendant—impacting the viability of the claims, the scope of discovery, and the cost of the litigation.

This paper will discuss the policy arguments in favor of and against early identification of trade secrets at the onset of discovery as opposed to at the close of discovery, as well as how Courts across the country are dealing with this issue, especially considering the Ninth and Fourth Circuit’s recent Quintara Biosciences and Sysco Machinery decisions. The paper will also discuss the practical realities of these differing approaches for trade secret litigants.

II. Policy Arguments Related to the Timing of Identification of Trade Secrets with Sufficient Particularity

In most trade secret cases, plaintiffs attempt to keep their options open as to the identification of their trade secrets as long as possible, while defendants seek to nail down the particularities of a trade secret as soon as possible. Courts have worked to balance the secret nature of trade secrets with the need for transparency between the parties in discovery. Strong policy arguments have been advanced by both plaintiffs and defendants in trade secrets cases as to when a court should require a trade secrets plaintiff to identify their trade secrets with reasonable particularity.

On one hand, defendants have made policy arguments in favor of early identification of trade secrets with sufficient particularity at the onset of an action. These include:

• Allowing well-investigated trade secret claims to proceed, while discouraging meritless claims and avoiding “fishing expeditions” to discover the trade secrets of a competitor;
• Keeping the plaintiff from molding causes of action retroactively around the discovery they receive;
• Helping defendants identify relevant information to produce during discovery and preventing needless exposure of their trade secrets;
• Providing defendants with an even playing field, allowing them equal time to mount their defense and preventing plaintiffs from making their asserted trade secrets a moving target; and
• Assisting the court (and parties) in determining the proper scope of discovery and, resultingly, avoiding inevitable motion practice over the need for or proportionality of discovery before its proper scope has been defined.

See generally The Sedona Conference, Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases, 22 Sedona Conf. 223, 235, 237-38, 240-41, 253 (2021).

On the other hand, plaintiffs have made policy arguments against early identification of trade secrets, such as at the onset of discovery. These include:

• The impracticality for the trade secret plaintiff to know which trade secrets the defendant misappropriated before it has obtained discovery, particularly if it is a company that has hundreds or thousands of trade secrets;
• Putting the plaintiff in a catch 22 at the onset of the case: if the list identifying its claimed trade secrets is too general, it will include items that the defendant will argue cannot be a trade secret, but if the list is too specific, it may miss what the defendant has misappropriated;
• Defendants seeking early identification are really attempting to obtain an advisory opinion or a premature summary judgment ruling that prejudices the plaintiff’s case;
• Motions seeking early trade secret identification by defendants before discovery are intended to delay and drive-up costs for plaintiffs;
• Some trade secrets are incapable or less susceptible of being reduced to a narrative “description,” particularly early in the case;
• Defendants (and the court) can better gauge the sufficiency of a plaintiff’s trade secrets once additional discovery, such as Rule 30(b)(6) depositions or expert discovery, has occurred;
• Early trade secret identification effectively imposes a heightened pleading standard that contravenes those imposed by the Federal Rules of Civil Procedure.

See generally id.

III. What Constitutes Identification of a Trade Secret with Sufficient Particularity?

While many courts have declined to state exactly what constitutes particularity—or done so in redacted or sealed orders given the sensitivities of the trade secrets at issue in the case—courts have not shied away from describing what does not satisfy a description of trade secrets with reasonable particularity. For example, the Northern District of Texas has found the following “will not” satisfy the requirement:

[A] laundry list of general categories of alleged “trade secret” information; lengthy, descriptive, but non-specific, paragraphs; generally listing software, data processing algorithms, and processes that a plaintiff developed, owned, or licensed; disclosures that only reveal the end results of, or functions performed by, the claimed trade secrets; and various concepts, elements, or components that make up designs.

StoneEagle Serv., Inc. v. Valentine, 2013 WL 9554563, at *4 (N.D. Tex. June 5, 2013) (internal citations omitted).

Given the sensitivities of trade secret material, and that the appropriate level of particularity can vary greatly by case, it is more difficult to establish a consistent standard from courts as to what does constitute reasonable particularity. From publicly available decisions, we can glean that courts have found that a trade secret plaintiff must, in its disclosure, allow the defendant to “understand[] the number of trade secrets at issue, the number of trade secret constitutive  elements, and the characteristics that make these trade secrets, trade secrets.” Bepex Int’l LLC v. Hoskawa Micron BV, No. 19-cv-2997, ECF No. 97 at 11 (D. Minn. Feb. 4, 2022). This includes, but is not limited to, “separately listing and describing with precision each alleged trade secret individually, detailing each secret’s exact identity, content, boundaries, scope, and constitutive elements—including a thorough dissection and description of any asserted combinations of elements and their relationships to each other within each trade secret—without relying on general, conclusory, generic, or vague phrases.” Id.; accord Torsh, Inc. v. Audio Enhancement, Inc., 2023 WL 7688583, at *5-8 (E.D. La. Nov. 15, 2023) (similar); Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D. 463, 467 (M.D. Fla. 2008), aff’d, 254 F.R.D. 470, 473 (M.D. Fla. 2008) (finding that “generic” description of trade secrets do not suffice).

Moreover, just because a disclosure is voluminous does not mean it meets the reasonable particularity requirement. In IDX Sys Cor. v. Epic Sys. Corp., 285 F.3d 581, 583 (7th Cir. 2002), the plaintiff provided a 43-page identification of its purported trade secrets. In response to the plaintiff’s argument that “a 43-page description of the methods and processes underlying and the interrelationships among various features making up IDX’s software package” was “specific enough,” the court tersely held “[n]o, it isn’t.” Id. The court found that the identification did “not separate the trade secrets from other information that goes into any software package” such as what “aspects are known to the trade, and which are not.” Id. The court concluded that “a plaintiff must do more than just identify a technology and then invite the court to hunt through details in search of items meeting the statutory definition.” See also Int’l Bus. Machs. Corp. v. LzLabs GmbH, 6:22-cv-299, ECF No. 358, 374 at *4 (W.D. Tex. June 27, 2024) (“While Plaintiff’s identification of trade secrets provides a considerable amount of information, it fails to expressly identify what portions of its runtimes it contends is non-public.”).

In fact, some courts across the country “have increasingly adopted local rules or practices to issue orders at the outset of litigation as an aid to case management and discovery in trade secret cases.” Torsh, Inc., 2023 WL 7688583, at *6 & n.31 (collecting cases from federal courts with local rules or scheduling orders that have instituted identification of trade secrets with sufficient particularity in trade secret cases as part of their standard orders); see also Am. Achievement Corp., et al. v. Jostens, Inc., 21-cv-2613, ECF No. 124 at 7-8 (D. Minn. Sept. 28, 2022) (including language in its pretrial scheduling order related to trade secret identification process).

IV. Differing Approaches as to When Trade Secrets Must be Identified with Sufficient Particularity

 Recent federal appellate and district court decisions have revealed a split of authority over when plaintiffs are required to define their alleged trade secrets with particularity.

A. Trade Secrets Should be Identified with Sufficient Particularity Before or at the Onset of Discovery

Some courts hold that a trade secret plaintiff must identify their trade secrets with particularity at the onset of the case—with some courts requiring plaintiffs to identify their claimed trade secrets before discovery with the same level of particularity that would be required at summary judgment or trial.

The Fourth Circuit has recently adopted a strict approach, requiring plaintiffs at the pleading stage to allege their trade secrets with sufficient particularity. Sysco Machinery Corp. v. DCS USA Corp., 143 F.4th 222 (4th Cir. 2025). In its complaint, the plaintiff identified its trade secrets as its “compilation of machinery, software, and confidential information” as well as its “technical, financial, operations, strategic planning, product, [vendor] pricing, and customer information.” Id. at 228. Analogizing the plaintiff’s claim to a “fishing expedition,” the Fourth Circuit stated that the definitions provided in the complaint “suggest that nearly [plaintiff]’s entire business is a trade secret.” Id. at 229. The court stated that the claim was so “sweeping and conclusory” that it was impossible for the defendant or the court to assess whether the plaintiff met the reasonable secrecy or independent economic value elements of proving a trade secret. Id. The court ultimately affirmed the dismissal of the plaintiff’s claim for failure to state a claim upon which relief can be granted and the district court’s denial of the plaintiff’s motion for leave to amend its complaint. Id. at 231-32. The court stated that trade secret plaintiffs must identify trade secrets with “sufficient particularity” at the pleading stage or risk dismissal. Id. at 228. This practice is necessary, according to the Fourth Circuit, to allow courts to assess the plausibility of the claim.

Other courts have found that trade secret plaintiffs must identify their trade secrets with particularity at the onset of discovery. For example, the District of Minnesota has found that even at the preliminary stages of discovery, “[a] plaintiff must describe its trade secrets with the same specificity expected at summary judgment or trial.” Mednet Sols., Inc. v. Jacobson, 2021 WL 6931589, at *2 (D. Minn. Sept. 16, 2021); accord Porus Media Corp. v. Midland Brake, Inc., 187 F.R.D. 598, 600 (D. Minn. 1999) (“Ordering the listing of trade secrets at the outset of the litigation is a common requirement.”). Similarly, the Eastern District of Louisiana has determined that “[a]fter the motion to dismiss stage, in order for the court to manage discovery . . . a more particularized identification of trade secrets than what is required in a complaint is necessary.” Torsh, 2023 WL 7688583, at *5.[1]

 B. Trade Secrets Should be Identified with Sufficient Particularity After Some Discovery

Other courts hold that a trade secret plaintiff should not be required to identify their trade secrets with particularity until after some discovery—finding that trade secret identification should be an iterative process.

 The Ninth Circuit recently reached this conclusion in Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., 149 F.4th 1081 (9th Cir. 2025). In that case, the plaintiff alleged the theft of various information relating to the plaintiff’s DNA-sequencing-analysis business. Id. at 1085-86. Even though the plaintiff identified its trade secrets during discovery, the trial court found the identification was insufficiently particular and struck nine of the eleven trade secrets as a discovery sanction. Id. at 1085. After a jury returned a verdict in the plaintiff’s favor on the one remaining trade secret that the plaintiff chose to try, the plaintiff appealed the district court’s decision on the motion to strike.

On appeal, the Ninth Circuit held that the trial court abused its discretion in striking the plaintiff’s trade secrets without sufficient discovery. Id. at 1089-91. The court found that, unlike the California Uniform Trade Secrets Act, which contains an express statutory command that a plaintiff identify its trade secret with “reasonable particularity” before the commencement of discovery, the federal DTSA does not require a plaintiff to identify its trade secrets with particularity at the start of the case, nor does it set out specific timing or scope requirements for identification. Id. at 1088-89. Instead, under the DTSA a plaintiff only needs to identify its trade secrets with “sufficient particularity” to prove ownership and carry its burden of showing that its trade secrets exist. Id. The court explained that “plaintiffs in trade secret actions may have commercially valid reasons to avoid being overly specific at the outset in defining their intellectual property” because “the more precise the claim, the more a party does to tip off a business rival to where the real secrets lie.” Id. at 1088. After explaining that the disclosure of trade secrets is a “delicate problem” that requires a balancing act, the court found that discovery of trade secret cases involves an “iterative process,” where trade secret disclosures are “refined and sufficiently particularized” as discovery proceeds. Id. According to the Ninth Circuit, in the early stages of discovery, “a DTSA trade-secret claim will rarely be dismissible as a discovery sanction.” Id. at 1091. The court also held that “whether a DTSA plaintiff has identified information that is sufficiently particular to constitute a trade secret—information that is kept secret and derives value from not being generally known—is a question of fact,” best resolved “on summary judgment or at trial.” Id. at 1085.

The Ninth Circuit now allows more general allegations at the outset of the case, with the expectation that as the litigation continues, a plaintiff will better clarify the precise contours of its trade secrets. This gives the district court broad discretion in how to manage the discovery process for identification of trade secrets under the DTSA. It also gives the plaintiff more flexibility in defining their trade secrets as more facts become available in discovery. Nevertheless, the opinion did reaffirm that, for a DTSA plaintiff, the sufficient particularity requirement is a “merits” issue—that should “usually” be decided at summary judgment or trial. Id. at 1085, 1091.

V. Practical Implications of Sysco Machinery Corp. and Quintara

Although there may be a jurisdictional split as to when a plaintiff must sufficiently identify its trade secrets, identification of trade secrets will remain a key issue that will receive scrutiny at summary judgment, trial, or even post-trial motions. For example, last year in Coda Development s.r.o. v. Goodyear Tire & Rubber Co., 160 F.4th 1350 (Fed. Cir. 2025), the Federal Circuit affirmed the district court’s decision to set aside a jury verdict awarding $2.8 million in compensatory damages and $61.2 million in punitive damages, finding that the plaintiff’s alleged trade secrets were not sufficiently particular (in addition to not secret and not used by the defendant). The Federal Circuit stated that “a trade secret plaintiff must ‘defin[e] the information for which protection is sought with sufficient definiteness to permit a court to apply the criteria for protection . . . and determine the fact of an appropriation.” Id. at 1355 (citations omitted). The Federal Circuit agreed with the trial court’s setting aside the verdict because it found numerous issues with the identification of the alleged trade secrets.

Similarly, this year, in Next Payment Sols., Inc. v. CLEAResult Consulting, Inc., 163 F.4th 1091 (7th Cir. 2026), the Seventh Circuit affirmed summary judgment against the plaintiff because—even after the benefit of discovery—the plaintiff failed to describe their trade secrets with sufficient particularity. In this case, the plaintiff developed a customized appointment scheduling software tool (the “FAST Tool”) for the defendant. Id. at 1094. After the defendant transitioned to a different scheduling software, the plaintiff sued under the DTSA, alleging the defendant had misappropriated trade secrets by examining the Fast Tool’s functionality to refine its competing software. Id. at 1095-95. The plaintiff provided a list of 34 software “modules” with descriptions such as “[o]nline [s]elf-[s]cheduling,” “[e]mail & [t]ext [m]essaging,” and “present[s] real-time appointment availability,” but the court found that these descriptions only described what the software did, now how it did it (i.e., the hidden know-how behind them). Id. at 1096-98. Like most software, the FAST Tool had behind the scenes elements such as rules, algorithms, and source code that were not shared with the customer. Id. at 1098. The court said that “[a] plaintiff must show ‘concrete secrets’ rather than ‘broad areas of technology.’” Id. at 1096. The court observed that “[d]escribing the software functions without disclosing the underlying methods is like saying someone stole your top secret apple pie recipe, but never identifying the recipe itself.” Id. at 1098; see, also, e.g., Applied Predictive Techs., Inc. v. Market Dial, Inc., 2026 WL 218291, at *3 (Fed. Cir. Jan. 28, 2026) (affirming summary judgment against a trade secret plaintiff that failed to sufficiently identify and substantiate its alleged trade secrets”); Double Eagle Alloys Inc. v. Hooper, 134 F.4th 1078, 1089-97 (10th Cir. 2025) (affirming dismissal of DTSA claims on summary judgment because the plaintiff failed to differentiate between the trade secret components of its digital files and those components that could not qualify as trade secrets); Olaplex Inc. v. L’Oreal USA, Inc., 855 F. App’x 701, 712 (Fed. Cir. 2021) (reversing a denial of a JMOL because the trade secrets were described by witnesses in general terms that are widely known and there was “an inadequate basis for a fair adjudication of what information was actually used by the defendant.”); but see Zunum Aero, Inc. v. Boeing Co., 2025 WL 2364602, at *1 (9th Cir. Aug. 14, 2025) (overruling the trial court’s decision to wipe out a $72 million jury verdict after trial that the trade secrets were not sufficiently explained, rejecting that conclusion and stating the plaintiff “provided sufficient specificity” when its “witnesses identified the trade secrets by number, provided a basic explanation of each, and used exhibits and demonstratives to exemplify information comprising specific trade secrets”).

 As a practical matter, whether a plaintiff finds itself in the Fourth or Ninth Circuit with each courts’ different pleading stage requirements—or somewhere in between—at some point before summary judgment a plaintiff must sufficiently identify their trade secrets with particularity. Although there may be a jurisdictional split as to when a plaintiff must sufficiently identify its trade secrets, identification of trade secrets with particularity will remain a key issue for courts to decide at summary judgment or in post-trial proceedings.

The DTSA pleading standard in the Ninth Circuit could serve as a double-edged sword that may give plaintiff great latitude to define trade secrets during discovery, but plaintiffs will want to define their claimed trade secrets early in the case, even if not required by the jurisdiction, because courts will ultimately require a trade secret plaintiff to identify their trade secrets to allow the factfinder to determine whether the information is a trade secret before the case heads to a jury (or even after). So even with the Quintara decision, plaintiffs will want to avoid generalities when describing their trade secrets or broad functional areas of information.

In fact, this recently occurred within the Ninth Circuit in Sky Orthobiologics, LLC v. CTM Biomedical, LLC, 2026 WL 370392 (C.D. Cal. Feb. 6, 2026), where the Central District of California decided a motion for reconsideration filed by the plaintiff saying that the prior summary judgment order granting summary judgment on its DTSA claim was flawed because Quintara constituted a change in controlling law. The plaintiff argued that given Quintara it should be afforded the opportunity to “refine or clarify their trade secret identification” in an iterative discovery process. Id. at *2. The court disagreed. The court said in Quintara the Ninth Circuit made “new law in establishing the different particularity standards for DTSA and CUTSA claims,” but that this distinction did not matter for its analysis because its summary judgment decision only applied law under the DTSA. Id. at *3. The court also disagreed that the case was like Quintara, because unlike the plaintiff in Quintara, whose trade secrets were struck as a discovery sanction before discovery, in Sky Orthobiologics, the plaintiff was able to engage in discovery on its claimed trade secrets and the plaintiffs “had ample opportunity to clarify what its trade secrets were with ‘sufficient particularity.’” Id. at *6. The court also stated that “[a] plaintiff may not make an overly broad identification of trade secrets, stand on it throughout discovery and summary judgment, and then complain that it must be given another chance to properly identify its trade secrets” after the court has decided summary judgment. Id. at *7.

 In addition to when a plaintiff may be required to sufficiently identify their trade secrets given the procedural phase of the case based on the Circuit, another practical impact of the Quintara decision is that whether a plaintiff has identified information that is sufficiently particular to constitute a trade secret is likely to become a standard jury question in a way that it was not before. The Ninth Circuit in InteliClear, LLC v. ETC Glob. Holdings, Inc., 978 F.3d 653, 659-60 (9th Cir. 2020), determined that a jury properly instructed could decide “what trade secrets exist, before addressing other elements” of the DTSA claim, provided the plaintiff identified the alleged trade secrets with “enough specificity to create a triable issue of fact.” As such, defense counsel should ensure that jury instructions explicitly address this issue. The jury may be instructed to consider each alleged trade secret separately to decide: (1) if it qualifies as an identifiable trade secret (with all the constituent elements, including whether it is stated with particularity); and (2) if it is a trade secret, whether it was misappropriated.

 There will likely be arguments between plaintiff and defense counsel as to what the jury should be instructed with regards to sufficient particularity. There should at least be a baseline instruction that informs the jury that the plaintiff must identify the alleged trade secret information with a reasonable degree of precision and specificity that is sufficiently particular enough to separate each alleged trade secret from matters of general knowledge in the trade or of special knowledge of persons skilled in the trade. The jury instructions should be evaluated on a case-by-case basis and reflect the types of claimed trade secrets at issue given there may be different specificity requirements for different trade secrets, i.e., software trade secrets or combination trade secrets. For example, the Sedona Conference recently proposed model jury instructions for the DTSA for public comment. See The Sedona Conference, Defend Trade Secrets Act Model Jury Instructions: Public Comment Version, § 3.1 (Dec. 2025), available at https://www.thesedonaconference.org/sites/default/files/publications/Defend_Trade_Secrets_Act _Model_Jury_Instructions_Public_Comment_Version.pdf (providing a model jury instruction regarding the “[d]efinition of ‘[t]rade [s]ecret’”). Addressing the reasonable particularity issue, the Sedona Conference proposes model jury instructions that require the plaintiff to “identify the information it alleges to be trade secrets with a reasonable degree of precision and specificity that is particular enough to separate each [a]lleged [t]rade [s]ecret from matters of general knowledge in the trade or of special knowledge of persons skilled in the trade.” Id.

VI. Conclusion

 Although federal courts remain divided on when a trade secret plaintiff must identify its alleged trade secrets with sufficient particularity under the DTSA, there is no disagreement on whether that requirement ultimately must be met. Decisions such as Quintara and Sysco Machinery reflect differing judicial philosophies about the proper balance between protecting legitimate trade secrets and preventing shifting claims that unfairly prejudice defendants. Nevertheless, both lines of authority underscore that vague or functional descriptions will not survive scrutiny at summary judgment or trial. As recent appellate decisions make clear, plaintiffs who delay meaningful identification of their trade secrets risk dismissal, adverse discovery rulings, or post‑verdict reversal—even in jurisdictions that permit a more iterative approach during discovery. Accordingly, regardless of forum, trade secret litigants are best served by identifying their claimed trade secrets with precision as early as practicable, both to shape discovery efficiently and to ensure the claims are capable of being fairly adjudicated by the court or a jury.

[1] At present, only two states—California and Massachusetts—and Puerto Rico have codified a procedure for identification of trade secrets during litigation. See Cal. Civ. Proc. Code § 2019.210; P.R. Laws title 10, § 4139(a), and Mass. Gen. Laws Ann. Ch. 93 § 42D(b).