Zachary Garrett, John Murnane and Stephen Krachie published, “The Risk of Expiring NDAs to Trade Secret Status Under the DTSA” in the May 2026 issue of the Intellectual Property Strategist. The following is an excerpt:
At a recent trade secret conference, several speakers highlighted a problem with a common industry practice related to non-disclosure agreements (NDAs). In particular, NDAs are often drafted such that they (and the confidentiality obligations therein) expire after a set term, but there is a very real risk that doing so may inadvertently destroy trade secret status of information disclosed pursuant to the NDA.
The risk stems from a core requirement of the Defend Trade Secrets Act (DTSA). To qualify as a “trade secret,” the trade secret owner must take reasonable measures to keep the information secret. 18 U.S.C. §1839(3)(A). NDAs are routinely cited as evidence that such measures were implemented. They demonstrate that the owner treated the information as confidential and imposed enforceable restrictions on disclosure and use.