Trade secret litigators in California are familiar with California Code of Civil Procedure section 2019.210. That section requires plaintiffs to identify their alleged trade secrets with “reasonable particularity.” Critically, the section requires that plaintiffs do so “before commencing discovery relating to the trade secret.” Section 2019.210 has long been an important weapon in the arsenal of lawyers defending against claims of trade secret misappropriation.
The new Defend Trade Secrets Act of 2016 (DTSA; amending 18 U.S.C. §§ 1832–1839), by contrast, contains no such special requirement that plaintiffs identify their trade secrets.
On its face, this would seem to be a strong incentive for plaintiffs to sue under the DTSA in federal court instead of suing in California state court under California’s Uniform Trade Secret Act.
On the other hand, before the DTSA became law, some federal courts held that they were required to apply California’s section 2019.210 to trade secret claims. And some federal courts have imposed requirements analogous to section 2019.210 – that is, requiring plaintiffs to identify the alleged trade secrets with particularity – by invoking Federal Rule of Procedure 26, regardless of whether section 2019.210 technically applies.
It remains to be seen whether federal courts in California addressing claims under the DTSA will impose the familiar requirements of section 2019.210. Meanwhile, trade secret plaintiffs in California should strongly consider bringing their claims in federal court and invoking the DTSA, while trade secret defendants in California (or “plaintiffs” seeking declarations of non-misappropriation) should think hard before filing that notice of removal to federal court.