I.    Introduction

¶ 1         Trade secret cases pose special problems distinct from other intellectual property lawsuits because alleged trade secrets are rarely defined in advance of litigation. For every patent, registered copyright, or trademark, there is a document filed with the federal government identifying the details and boundaries of the asserted intellectual property. But in trade secret cases, the plaintiff's attorneys typically develop the trade secret claims at the same time that they file a misappropriation suit against a former employee or business partner - or afterwards.

¶ 2         Trade secret plaintiffs rarely provide a precise and complete identification of the alleged trade secrets at issue without a court order requiring them to do so. This is a strategy, not an accident. The tactical advantages a plaintiff gains from non-identification are too tempting for a plaintiff to voluntarily provide such identification. In a typical case, the plaintiff has filed suit against a recently departed employee who joined or started a competing business, and then provide little more than a list of high-level, generic categories in which its alleged secrets are said to reside.

¶ 3         It is also common for a trade secret plaintiff to alter its list of trade secret claims as the case proceeds - sometimes dramatically, by replacing entire categories of information or technology, or by re-combining slippery, multi-element "combination trade secret" claims into new subsets. In a 2006 New Jersey case, for example, the plaintiff first identified four alleged secrets in an initial interrogatory response, then added six, later added thirty-nine in an expert report, then claimed ninety-two in a supplemental interrogatory response, and had its expert give what the court called "moving target" testimony about the alleged secrets.¹ We have seen many similar alterations during the course of cases in several jurisdictions, and defendants sometimes spend months disproving one set of allegations only to face a new, replacement set as the close of discovery nears.

¶ 4         Precise identification of the alleged trade secrets is a crucial component of trade secret litigation. This is especially true when complex technology is at issue, but also in cases featuring simpler claims. Without a precise identification of software code elements, hardware architecture components, or even the names of allegedly secret customers, the defendant cannot compare the claims against public domain information to challenge the alleged secrecy of such information. It is difficult to conduct a public domain analysis if the claims are identified at only a generic level such as "source code," "ASIC design elements," or "customer lists." Stated differently, the parties and the court cannot accurately decide the question of whether a trade secret exists without first understanding what precisely is asserted as a secret.

¶ 5         It is not surprising, then, that disputes over identification of the plaintiff's alleged trade secrets are common. However, it is notable that courts nationwide have not yet articulated a set of guidelines and standards to assist judges who must rule on identification questions. Indeed, courts in various jurisdictions have issued rulings on the same identification issues with almost opposite results - a majority requiring more identification, but a minority allowing the plaintiff to proceed with only general, conclusory descriptions of the alleged trade secrets. The published rulings indicate that courts subjectively reach their own conclusions, often with little or no reference to other published decisions. The problem is further exacerbated because courts rarely, if ever, quote precise descriptions of potentially valuable trade secrets in publicly available opinions, and thus most published opinions do not clarify the degree of specificity required.² As a result, the scattered case law in this area does not always serve as precedent, and it is difficult for parties to predict the result in any given case. The lack of a uniform set of guidelines invites trade secret plaintiffs to avoid identifying their alleged secrets in detail, because there is always a fair chance that the reviewing court will not require them to do so.

¶ 6         Despite the frequency of disputes over the identification of alleged trade secrets, the issue has received little scholarly attention.³ Perhaps this is because the case law is scattered across multiple jurisdictions, in state and federal courts, without any unifying doctrine apart from citations to a few well-known cases. Most treatises refer to the problem in only general terms,⁴ and a handful of practitioner-oriented articles note particular cases without a nationwide survey or detailed proposals.⁵

¶ 7         Given that most of the identification disputes on record have occurred in the past decade, the time is right for a detailed analysis of the identification problem. We believe that courts nationwide facing trade secret disputes should apply a recognized set of guidelines and standards to resolve disputes over the identification of alleged trade secrets in litigation. This would reduce unpredictable and inconsistent rulings, deter plaintiffs from strategically withholding information by gambling that any given court will not require a precise identification, and deter defendants from making the wrong demands as to identification at the wrong stage of the case. We believe that a proper standard would take into account the type of information being alleged as secret, the stage of the case, and the defendant's own diligence in raising the issue.

¶ 8         To that end, we have reviewed substantially all of the trade secret identification rulings available, including unpublished rulings and slip opinions, in order to paint a picture of how courts are reacting to similar arguments and disputes across the country. We will describe both outlier and mainstream opinions to illustrate why a set of common standards is needed.⁶

¶ 9         Yet merely summarizing holdings does not provide sufficient information to propose guidelines. Few courts have attempted to state rules of general applicability beyond the dispute at issue. Outlining the policy grounds supporting detailed identification of trade secret claims is therefore necessary. We will organize the discussion by the stage of the case, the type of information at issue, and the skill with which the defense has properly raised the issue. We will also offer solutions that courts can apply for the specific types of alleged secrets at issue in a given case.

¶ 10         In short, we offer five proposals as a standard for identification of alleged secrets in litigation:

(1)      Courts should first separate the question of whether the plaintiff has identified an alleged secret from the question of whether the information is, in fact, a trade secret;

(2)      Courts should require a reasonably detailed identification of the alleged secrets before a plaintiff can proceed with discovery - a rule already required by statute in California, and by common law in several other states;

(3)      Perhaps most importantly, if a defendant properly requests a precise identification during discovery, the court should require a precise, complete identification of whatever type of information is at issue - including an identification of alleged "combination trade secrets";

(4)      No trade secret plaintiff should obtain an injunction or avoid summary judgment without a precise identification of alleged secrets;

(5)      Trade secret plaintiffs should not be permitted to alter or amend an identification of trade secret claims without a showing of good cause.

¶ 11         These standards would remove the uncertainty that prevails in identification disputes. A trade secret plaintiff with a valid claim would have incentive to identify the alleged secrets early on, and a defendant who has misappropriated trade secrets could more easily be shown to have done so. A trade secret plaintiff with a meritless claim, however, would more easily be exposed. These standards would make it more difficult to sue former employees for harassment purposes and to spend them into the ground with protracted litigation, and more difficult to claim public domain information as trade secrets.

¶ 12         We believe that these proposals are equally applicable in jurisdictions which have enacted the Uniform Trade Secrets Act and those which follow the Restatement (Second) of Torts. Under both, a plaintiff must establish that the information at issue does, in fact, constitute trade secrets.⁷ Requiring identification is a necessary case management tool to ensure that the parties and the court accurately understand what information is being asserted as secret in order to proceed to the secrecy question.⁸

¶ 13         This Article is primarily for courts ruling on identification questions, who must research the issue when parties file pleadings that cite only decisions that favor their positions, and who may need a single source for all of the nationwide case law. We believe that courts do not always realize the degree to which the identification of trade secret claims is a lawyers' game, where one side holds back information and hopes that the opposing party will fail to raise the issue, or hopes that that a court will accept the argument that generic references to complex technology are sufficient.

¶ 14         This Article should also be of use to litigants, both to plaintiffs who have valid claims and seek to identify them in good faith and to defendants who lack the time or money to canvass the vast jurisprudence on identification, or who want to craft the best possible discovery requests to pin down a trade secret plaintiff and force a precise identification.

¶ 15         In what follows, we will describe the common mistakes that courts make when ruling on identification disputes, the problems that arise in the absence of a precise identification of trade secret claims, and how courts nationwide have ruled on identification disputes. We will then offer specific proposals for resolving identification questions.

II.    The Problem

¶ 16         A trade secret case usually begins shortly after a former employee has resigned and either joined a competitor or formed a new, competing business. The plaintiff files a lawsuit that accuses the defendant of misappropriating trade secrets, but the complaint contains only generalities about the nature of the alleged secrets. Once the parties have entered into a protective order that allows the confidential sharing of information between the parties and their attorneys,⁹ the plaintiff sometimes issues a written statement that purports to identify the trade secret claims at issue, and sometimes provides such a statement as a discovery response. Because the statement rarely if ever identifies the alleged secrets with precision, a dispute over the specificity of the identification often arises within the first three months of the litigation. In other cases, the identification dispute arises later, when the plaintiff alters its claims or raises a new set of claims.

¶ 17         In the typical dispute over identification of alleged trade secrets, the defense argues that the plaintiff's list of categories and concepts is not specific enough, and then cites a scattering of cases that may not have been decided at the same stage of the case, that may not have addressed the same type of information, or that provided no real guidance on how much precision was required. The plaintiff, in turn, often responds by arguing that the defendant already knows what the alleged trade secrets are because the defendant knows what it stole, and thus no identification is necessary. The plaintiff will typically argue that a list of high-level concepts is sufficient and make selective citations to cases so holding, and it may also argue that because it alleges "combination" trade secrets rather than individual trade secrets, no identification should be required.¹⁰ Also, if the case is at an early stage, the plaintiff may argue that it cannot yet know every trade secret that was stolen and therefore cannot identify all trade secrets claims it may assert in the future.

¶ 18         Assessing an identification dispute can be difficult given the lack of uniformity in the published cases and the absence of a set of standards to which courts can look, especially in jurisdictions where trade secret lawsuits are less common.

¶ 19         The best place to begin is to step back from the facts of the case at issue and outline the policy reasons why requiring a detailed identification of the trade secret claims makes sense. We believe that there are at least twelve such considerations. Courts have cited some of these considerations when requiring identification, and we have come to recognize the others in the course of litigating scores of trade secret cases.

¶ 20         The first consideration is that the identification of an alleged trade secret can only come from the plaintiff, because there is no other pre-existing source one can look to for the details of the alleged intellectual property. Trade secrets are not listed claim-by-claim like patents or set forth in their entirety like registered copyrights or trademarks. There is no public source to which the defendant can look in order to determine what potential trade secrets the plaintiff possesses. The plaintiff's decision on what to claim as its trade secrets in litigation is a subjective one. Even if a former employee defendant could guess what trade secret claims the former employer might make, the specifics of the actual claim could differ from that speculation. On this point, it is important to note that the plaintiff's identification of its own alleged intellectual property does not depend on the defendant's documents, because the preliminary question is whether the plaintiff has a trade secret, which must be answered before determining whether the defendant used the secret in its products or services.

¶ 21         The second consideration is that requiring an early and precise identification of alleged trade secrets will encourage compliance with Federal Rule of Civil Procedure 11 and similar state rules governing frivolous pleadings. Such statutes and the Uniform Trade Secret Act all require that a trade secret plaintiff make allegations of misappropriation in good faith - either directly or through general rules against meritless accusations.¹¹ Any plaintiff's pre-lawsuit review of a potential trade secret matter should therefore consider whether the basic elements of the tort claim can be met, such as (1) the existence, in fact, of a trade secret; (2) the plaintiff's use of reasonable measures to maintain that secrecy; and (3) the defendant's misappropriation of one or more such secrets.¹² A plaintiff cannot adequately investigate these elements without internally identifying the trade secret claims under consideration. A vague identification of alleged trade secrets once the litigation has begun suggests that the plaintiff did not undertake a pre-lawsuit review. If parties know that identification will be required early in litigation, they have greater incentive to do a careful review before filing suit.

¶ 22         Third, and similarly, a lax identification standard could allow a party to avoid the statute of limitations. As one court noted on this point:

These facts of cutting edge technological life, to say nothing of the limitations of language generally, have the effect of giving the person asserting trade secret claims in these kinds of cases, very wide definitional latitude, and, with that, considerable power to manipulate the articulation of claims for tactical purposes, e.g., to escape what might otherwise be a perfectly sensible application of the statute of limitations.¹³

¶ 23         The fourth consideration is that an exact identification is necessary to set the proper bounds and scope of discovery - the areas in which discovery will be permitted. Litigating parties often make and sell products outside the scope of the alleged trade secrets, and requiring a precise identification prevents burdensome and expensive discovery into irrelevant areas. Also, without a detailed identification, a plaintiff may later define its alleged secrets by first looking at the defendant's documents and then crafting claims that match those documents, but that do not match the plaintiff's own information.

¶ 24         The fifth consideration is that requiring a detailed identification early in a lawsuit may reduce future disputes over identification and thereby reduce the length of the discovery process. By contrast, a plaintiff who identifies the claims only later may cause new rounds of depositions and other discovery as the parties scramble to assess the newly-provided information. Knowing the claims early allows for a focused and efficient discovery plan from the start, and thus serves as a useful case management tool.

¶ 25         The sixth consideration is that without a precise identification, the defense lacks the information it needs to conduct public domain research and challenge the alleged secrecy of the information at issue. Seventh, and for the same reasons, the reviewing court cannot rule on a secrecy claim with accuracy and confidence if the exact parameters of the information remain unclear. Without details, who can be sure that the alleged secret has not been published elsewhere, by a market competitor, an engineering publication, or in academic work?

¶ 26         The eighth consideration is that requiring a precise identification prevents a plaintiff from making overbroad secrecy claims encompassing vast categories of information. Plaintiffs sometimes use the trade secret claim as a sort of non-competition covenant by listing wide areas of technology that encompass the former employee's entire set of skills, knowledge, and experience. Ninth, and on a related point, a defendant cannot formulate its arguments for differentiating its technology from the alleged trade secrets at issue without knowing precisely what those trade secrets are. For example, a former employee may well have worked in good faith to ensure that software written for a subsequent employer would not copy or otherwise make use of the former employer's non-public information, but cannot make that distinction if the plaintiff asserts only general functionalities common to that general type of software.

¶ 27         The tenth consideration is that expert reports from both sides will be more useful and focused if the exact nature of the alleged secrets is known before they begin their work. Without an exact identification, the plaintiff's expert may simply declare that broad areas of technology are trade secrets, without actually conducting specific public domain research that could support a valid scientific opinion. Meanwhile, the defense experts may be forced to spend a great deal of effort researching and opining on wider areas of technology than are at issue, without being able to focus on the exact technology the plaintiff claims as intellectual property.

¶ 28         The eleventh consideration is that the trade secret plaintiff should not be able to unilaterally alter and amend its claims without judicial review as the lawsuit proceeds. Too many trade secret cases feature a kaleidoscope of amorphous, frequently-altered claims that prevent the defense from pinning down and defeating any solid set of claims. Requiring an early and precise identification of alleged secrets can make attempts at unsupervised alteration apparent. By contrast, a broad and non-specific list of concepts and categories allows a plaintiff to alter the details of the claims in a manner more likely to escape judicial review.

¶ 29         Finally, and perhaps most broadly, requiring a detailed identification protects employees' interests in moving to the jobs of their choice and using public domain information, as they have a right to do. When a plaintiff makes vague trade secret claims against a former employee without narrowly defining the actual items at issue, it is essentially requesting a court-created non-competition agreement against the defendant.¹⁴ Such claims cut into the former employee's general right to take non-secret knowledge, skills, and experience from job to job.¹⁵ But when discovery focuses only on detailed clams susceptible to examination and study, there is less risk that these important public policy interests will be encroached upon.

¶ 30         At the same time, we do not agree with all of the policy grounds that courts have given for requiring a detailed identification of alleged trade secrets. Some courts and commentators have asserted that identification is needed to prevent a malicious plaintiff from filing suit for the purpose of getting into the defendant's own information and taking the defendant's trade secrets.¹⁶ While we have learned from experience that attorneys are willing to assist their clients by altering claims and by not defining claims, we believe that it is less likely that a law firm would assist a client's scheme to take information from a competitor by filing a lawsuit against the competitor and turning over information produced in discovery and designated as confidential under a protective order. We believe that courts should avoid relying on this purported basis for requiring an identification, and focus instead on the real problems caused by non-identification.

¶ 31         Reflecting on these policy considerations should assist courts in making a ruling appropriate to the case at issue, and in avoiding the mistakes courts sometimes make when deciding identification questions.

¶ 32         Several such mistakes merit special attention. To begin with, a tiny minority of courts have nullified the identification requirement altogether, refusing to require a trade secret plaintiff to identify the trade secret claims even in the face of the defendant's discovery requests or controlling law in the jurisdiction. As one example, a California trial court sanctioned a trade secret defendant in a 2006 case for not providing discovery after the plaintiff failed to serve a trade secret identification statement, and it took an appeal to reverse the sanctions - even though California has a statute requiring that a trade secret plaintiff provide a reasonably particular identification of alleged secrets before pursuing discovery.¹⁷ In another case, a Massachusetts court repeatedly rejected the defendant's efforts to learn the details of the alleged secrets.¹⁸

¶ 33         Rulings like these are outliers. But three other mistakes that courts make are more common, and perhaps less obvious. One is not recognizing that the identification of the trade secret claims is a separate issue distinct from whether the information at issue is secret, because that identification is a necessary preliminary step leading to the secrecy analysis. In such cases, courts conflate identification questions with the secrecy question, confusing the discussion.¹⁹

¶ 34         The second mistake is assuming that descriptions of technical categories and concepts such as "source code" or "placement of capacitors in the schematic for the ABC project" are sufficient to identify alleged secrets - perhaps because courts do not always recognize how much public domain information exists in such broadly defined technical categories. We will describe several such rulings below.

¶ 35         The third common mistake, and perhaps the worst, is accepting a plaintiff's argument that because "combination trade secrets" are claimed, the plaintiff need not make a precise identification of such alleged secrets. A "combination trade secret" is a multi-element claim that, when valid, ties non-secret items of information together in a unique manner to form a trade secret. The concept is dangerous, however, because trade secret plaintiffs often string together non-secret items that have no functional interrelationship to avoid a defendant's showing that the individual items are non-secret. Attorneys also use the "combination" concept to alter claims, and to create more sets of alleged intellectual property than the plaintiff ever actually thought about or linked together. But combination claims can fail for a number of reasons, just as individual trade secret claims can, and thus they should not provide a shield against identification.²⁰

¶ 36         Trade secret plaintiffs use the "combination" argument during identification disputes to confuse courts and escape a precise identification of the alleged secrets. If a defendant argues for a precise identification, the plaintiff will often respond that it claims "combination" secrets in an "entire process" rather than individual secrets, and that identifying individual elements should therefore be unnecessary. Or, to the same effect, the plaintiff argues that its secret is its entire base of software source code, its entire chip design, and so forth, without regard to identifying what exactly about those broad categories are asserted as an allegedly misappropriated secret.

¶ 37         The "combination" concept can create a major loophole for a plaintiff seeking to avoid identification. Perhaps most dangerous, a plaintiff can use the "combination" theory to alter and revise its claims in different mixes of subsets, to gerrymander a claim so that the defense cannot focus its research efforts on defeating the final version. If we take, for example, seven software algorithms and assume that five are in the public domain, the plaintiff might alter the claim several times to create subsets of the seven where at least one of the included algorithms is secret, in order to claim the non-secret algorithms as secret as well. With a simple set of seven, there is a multiplicity of mathematically possible variations of subsets of two or more elements. Of course, the algorithms may not in reality interoperate together, and perhaps should properly be defined as individual trade secret claims rather than "combination" claims. But without requiring a precise identification of the "combination" trade secret at issue, the defense may be unable to raise that argument. Courts need to be aware of this common litigation tactic and nail down exactly what permutations and subsets are actually claimed as secret.

¶ 38         But all too often, courts have confused the question of (1) whether the plaintiff claims "combination" secrets instead of individual secrets with (2) whether the plaintiff should be required to precisely identify its alleged trade secrets regardless of whether they are claimed in combinations or individually.

¶ 39         There are several published rulings where courts have failed to require a precise identification of the alleged secrets as a result of conflating these two issues.²¹ In one, a plaintiff vaguely claimed secrets somewhere within 500 pages of materials, and the defendant argued on appeal after a jury verdict that the plaintiff did not specify what the secrets were. The court merely noted that a plaintiff can have a combination trade secret in material that includes elements that are individually non-secret, and did not ask whether any such combination had been properly identified.²² And in one of the most questionable trade secret rulings on record, a Pennsylvania district court rejected a defendant's identification argument by holding that the plaintiff's set of generalized business concepts for running a tanning salon was an "entire methodology" that added up to form a trade secret, without any specific identification. By avoiding the identification analysis and stringing together vague business concepts into a combination trade secret, the decision essentially created a non-competition agreement and held the defendant liable for violating it.²³ Of course, a plaintiff certainly is capable of properly identifying an alleged combination trade secret.²⁴ Indeed, many courts have required precise identification of "combination trade secrets." We will discuss those cases below when proposing solutions.

¶ 40         With these policy considerations and common mistakes in mind, we will survey the nationwide case law, and then offer specific proposals for addressing identification disputes.

III.    How Courts Nationwide Have Addressed Identification Disputes

¶ 41         There are several stages of a case where courts face disputes over the identification of alleged trade secrets: the pleading stage, on a request for a temporary restraining order or preliminary injunction, just before discovery begins, during discovery, on a motion for summary judgment, during trial, and after trial.

¶ 42         For the most part, the majority trend is to require a detailed identification of alleged secrets - particularly on a request for an injunction, during discovery, and on a motion for summary judgment. Rulings are inconsistent at the pleading stage, probably because of liberal notice pleading requirements. In turn, rulings after trial often go against the defendant, likely because the defense waited too long to raise the identification issue and, more importantly, because courts are loath to overturn jury verdicts.

¶ 43         In some cases, trade secret defendants have moved to dismiss the complaint, or to obtain a more definite statement, when the plaintiff is vague regarding the alleged secrets. Some courts have required more information at the pleading stage,²⁵ though plaintiffs obviously need not disclose material believed to be secret in a public complaint, and liberal notice pleading standards often mean little is required.²⁶ As one court explained the general rule, "courts are in general agreement that trade secrets need not be disclosed in detail in a complaint alleging misappropriation . . . . The query is whether the allegations provide the defendant with notice as to the substance of the claims." ²⁷ In some cases where courts have required more detail in a complaint, it is unclear whether the amended complaint would be filed under seal, though it would seem that a confidential or redacted filing would be appropriate.²⁸

¶ 44         Many trade secret cases begin with a rushed request for a temporary restraining order or preliminary injunction. At that stage, trade secret plaintiffs sometimes make only vague references to the alleged secrets, without providing details. As a result, courts have repeatedly used the identification requirement as a ground to deny the request.²⁹ Given the courts' general reluctance to enjoin a defendant's employment or business on an expedited proceeding without a careful review of the evidence, it is not surprising that plaintiffs' failures to identify the information at issue provides a ready reason for a denial.

¶ 45         Of course, some trade secret plaintiffs do provide a sufficient identification of their claims when seeking injunctive relief.³⁰ Indeed, one would expect that in egregious cases - where, say, a former employee downloaded key non-public files the day before resigning - a plaintiff should easily be able to make a precise identification of the alleged secrets to support its request.

¶ 46         At least one court has required little identification on a request for injunctive relief. That court held that "source code" was a sufficient identification on a request for a preliminary injunction, and attacked the defendant for considering its own software to be confidential while also seeking a better identification of the plaintiff's claim.³¹ The court may have conflated the separate considerations of whether or not alleged trade secret is truly secret and whether or not the plaintiff adequately identified the alleged trade secret, because it did not provide a separate analysis for identification and then secrecy in sequential order.

¶ 47         An issue related to injunctive relief is whether the court itself properly identifies the alleged secrets in the order so that the defendant knows exactly what it is forbidden from using. Some appellate courts have reversed orders for injunctive relief on this basis. ³² It stands to reason that if a trade secret plaintiff fails to provide a precise identification of its alleged secrets, a court will not be able to issue an appropriately specific order against the defendant.

¶ 48         If a defendant does not challenge the specificity of the complaint, and if the plaintiff does not seek immediate injunctive relief, the next phase of the case where identification disputes arise is the moment when the plaintiff seeks to commence discovery on its trade secret accusations. Several jurisdictions have required that trade secret plaintiffs make at least a "reasonably particular" identification of their alleged secrets as a condition precedent to seeking discovery from the defendant. In those jurisdictions, pre-discovery identification disputes are common.

¶ 49         Courts in several states (or federal courts applying state law) have required a pre-discovery identification procedure by common law: Delaware,³³ Illinois,³⁴ Massachusetts,³⁵ Minnesota - which requires the most detail³⁶ - and possibly Florida.³⁷ In addition, a federal court in New York has addressed a defendant's argument that the plaintiff should not be able to start discovery on the trade secret claim without first making an identification of the alleged secrets by sending the dispute to a discovery master, but it did not attempt to craft a rule of general application to other cases. ³⁸

¶ 50         California is the only state to codify a pre-discovery identification rule by statute.³⁹ California's legislature enacted what is now Code of Civil Procedure section 2019.210 in 1985 as part of the state's Uniform Trade Secrets Act. The impetus for the statute came from a state bar memorandum to the state legislature proposing the text of the statute and noting the discovery abuses that trade secret plaintiffs often engage in when they fail to identify the alleged secrets:

One area not addressed by the Uniform Act is the area of plaintiff's abuse in initiating trade secret lawsuits for the purpose of harassing or even driving a competitor out of business by forcing the competitor to spend large sums in defending unwarranted litigation. For example, when a plaintiff's employee quits and opens a competing business, a plaintiff often files a lawsuit for trade secret misappropriation which states that the defendant took and is using plaintiff's trade secrets, but does not identify the trade secrets. The plaintiff can then embark upon extensive discovery which the new business is ill equipped to afford. Furthermore, by not informing the defendant with any degree of specificity as to what the alleged trade secrets are, defendant may be forced to disclose its own business trade secrets, even though those matters may be irrelevant, and the defendant may not learn the exact nature of the supposedly misappropriated trade secrets until the eve of trial.⁴⁰

¶ 51         Courts and commentators have identified a number of salutary policy goals California's statute serves,⁴¹ though again we do not agree with all of them and find their summaries incomplete. Federal courts in California have applied the statute in trade secret cases under the Erie Doctrine,⁴² and courts elsewhere have also used it in cases under California law. ⁴³

¶ 52         Because so many trade secret cases have arisen in Silicon Valley, rulings on the degree of specificity required under California's pre-discovery statute have been common in the federal Northern District of California.⁴⁴ One such ruling is worth quoting, to illustrate how courts applying California law differ from courts in those jurisdictions which lack a pre-discovery identification requirement:

¶ 53         The Amended Identification of Trade Secrets shall be narrowed to include only items that Plaintiff considers are its actual trade secrets, and only those trade secrets that Plaintiff has reasonable grounds to allege were misappropriated. . . . If Plaintiff contends that a trade secret consists of a specific combination of items, it shall so state and concisely describe the combination. If Plaintiff contends that its specific use of an otherwise publicly known item constitutes its secret, it shall so state and concisely describe the use. All trade secrets shall be described in narrative form, rather than by cross-reference to other trade secrets or documents. If Plaintiff references a document as setting forth one or more trade secrets, it shall specify precisely which portions of the document describe the trade secret(s).⁴⁵

¶ 54         And in 2005, a California appellate court for the first time issued a ruling providing guidelines for what the statute requires. The court held that while absolute precision is not required at the pre-discovery stage, enough must be provided to separate alleged secrets from matters known to the trade:

The letter and spirit of section 2019.210 require the plaintiff, subject to an appropriate protective order, to identify or designate the trade secrets at issue with "'sufficient particularity'" to limit the permissible scope of discovery by distinguishing the trade secrets "'from matters of general knowledge in the trade or of special knowledge of those persons . . . skilled in the trade.'" . . . The degree of "particularity" that is "reasonable" will differ, depending on the alleged trade secret at issue in each case. Where, as here, the alleged trade secrets at issue consist of incremental variations on, or advances in the state of the art in a highly specialized technical field, a more exacting level of particularity may be required to distinguish the alleged trade secrets from matters already known to persons skilled in that field.⁴⁶

¶ 55         It remains somewhat unclear what "reasonable particularity" means in any given case. Does it mean that a plaintiff must provide 51 percent of the details that would be necessary for a completely precise identification of each claim, 67 percent, 75 percent, or more? None of the jurisdictions that require a pre-discovery identification with "reasonable particularity" have yet defined exactly what minimum degree of precision a trade secret plaintiff must aim for.

¶ 56         The discovery stage is the heart of where identification disputes arise, because discovery is the means by which the defense can demand a complete, precise identification of each alleged secret. Again, however, the courts have been inconsistent in the amount of detail they have required - though the skill with which the defense demands identification no doubt plays a role in the varying holdings.

¶ 57         Some courts have readily granted defense motions to compel a detailed identification of the trade secret claims, usually in response to defense interrogatories.⁴⁷ In a 2006 Washington case, for example, the defendant served an identification interrogatory. In response, the plaintiff "referenced its complaint and then listed generic categories of trade secrets: 'installer list/network,' 'pricing strategy and policies,' and 'customer lists.'" It also included the evasive phrase "among other things." The court granted a motion to compel, noting that "[d]efendants are entitled to discovery related to all of the so-called 'other things' allegedly misappropriated."⁴⁸

¶ 58         In turn, a 2005 Texas case describes how, on a motion to compel, a trial court addressed a plaintiff's recitation of generic concepts in its initial response by flipping those categories back at the plaintiff and requiring a precise identification regarding each of them:⁴⁹ There, the court ordered the plaintiff to

"state specifically the identity of each 'functionality,' 'data field,' 'rule,' reflex,' 'structure,' 'design,' 'architecture,' 'integration of combination of various components,' 'negative knowledge,' 'method or process utilized for manipulation information,' 'trigger,' 'calculation code,' 'formula,' 'distribution,' and 'format, content, sequence, total structure and record selection of various reports,' or other feature, function or element of [plaintiff's] automobile dealership management system or related written materials that is the subject of this case that [plaintiff] contend[s] is a trade secret accessed or misappropriated by [appellees]. Each trade secret claimed by [plaintiff] shall be separately identified by [it] in such answers."⁵⁰

¶ 59         In another case, a court rejected the plaintiff's initial interrogatory response, which listed a set of generic and conclusory phrases and made generalized references to a "ratio of ingredients." The court noted that the plaintiff "does not state how the ratio of ingredients relates to the manufacturing process, nor does it precisely describe how the manufacturing process varies according to the factors it has recited." In requiring a better response, the court held that the plaintiff's "answers concerning the nature of its alleged trade secrets are evasive, ambiguous, and incomplete."⁵¹

¶ 60         Similarly, a Pennsylvania court in an early case from 1972 found a trade secret plaintiff's responses to interrogatories seeking a specific identification of the alleged secrets "wholly evasive and nonresponsive," and reacted to the plaintiff's recitation of generic categories by rhetorically asking the plaintiff what within them was alleged to be secret:⁵² "The answers to #20 can hardly be construed to enlighten Defendants as to the information allegedly misappropriated. What are the confidential materials? Who are the confidential suppliers of such materials? What are the confidential names and addresses of such customers, potential customers, dealers, distributors and health department officials?"⁵³

¶ 61         Other courts have ruled against the plaintiff based on issues arising during a deposition,⁵⁴ or sent the matter to a special master to oversee the identification process.⁵⁵

¶ 62         But at least two courts have allowed plaintiffs to respond to interrogatories with more generalized information such as categories in which the alleged secrets fall. These appear to be the minority position, and it is not clear from the rulings how the defense worded its discovery requests.⁵⁶ At least one court has not ordered more detail where the defendant's request was badly constructed.⁵⁷

¶ 63         A plaintiff's failure to identify its alleged secrets during discovery can, and often does, lead to summary judgment. Courts have frequently granted summary judgment for the defense based on a failure to sufficiently identify the trade secret claims.⁵⁸

¶ 64         In one of the most famous such cases,⁵⁹ the Ninth Circuit affirmed summary judgment on a trade secret claim where the plaintiff asserted secrets in a film projection system. The plaintiff failed to identify the precise dimensions and tolerances that constituted its alleged secrets in responding to discovery requests, and the court affirmed the district court and noted that the lack of identification in a "sophisticated and highly complex projector system" left the defendant unable to "prepare its rebuttal."⁶⁰

¶ 65         In another case, the Seventh Circuit used harsh language against the plaintiff when affirming summary judgment on a software-based trade secret allegation.⁶¹ The plaintiff argued that it had identified its trade secret claims in a 43-page document, but the court rejected that attempt:

According to IDX, "a 43-page description of the methods and processes underlying and the interrelationships among various features making up IDX's software package" is enough. No, it isn't. These 43 pages describe the software; although the document was created for litigation, it does not separate the trade secrets from the other information that goes into any software package. Which aspects are known to the trade, and which are not? That's vital under the statutory definition. Likewise, IDX's tender of the complete documentation for the software leaves mysterious exactly which pieces of information are the trade secrets.⁶²

¶ 66         In another detailed ruling on a software analysis, a Wisconsin court affirmed a grant of summary judgment on a software claim by noting the many components that make up a software system, and faulted the plaintiff for not identifying what about its own CAD software was distinct from "general knowledge in this niche" of the CAD software industry.⁶³

¶ 67         But some courts, in our view, have gotten it wrong and allowed a plaintiff to survive summary judgment based on generic and non-specific sets of claims.⁶⁴ As an example, a federal court in Illinois denied a summary judgment motion where a plaintiff pointed to a long list of items which apparently included such high-level category descriptions as "[a] series resonant inverter driven by a half-bridge" and "[m]eans for reducing the cathode heating voltage after lamp ignition." The court found these non-specific categories to be "quite specific" in denying the motion.⁶⁵

¶ 68         In another highly questionable ruling, a federal court in Connecticut denied a motion for summary judgment where the plaintiff apparently identified alleged secrets surrounding an executable software program in seven generic categories such as "'descriptions . . . with regard to the concept of how the program worked,'" (ellipsis in original) and "'the program itself.'" The court appears to have allowed the "combination trade secret" tactic described above, and held that because combination trade secrets can exist, the plaintiff's "metaphorical 'recipe'" was a good enough trade secret claim to survive the motion.⁶⁶

¶ 69         And in some cases, of course, the plaintiff does provide detail sufficient to defeat the defendant's motion for summary judgment.⁶⁷

¶ 70         In some cases, the plaintiff evades identification until the pre-trial stage, and courts sometimes react strongly against the plaintiff.⁶⁸ In other cases, some cases make it all the way into trial or post-trial proceedings before the identification dispute comes to a head. In many of these cases, it appears that the defense failed to raise the issue earlier, and sometimes the waiver is apparent.⁶⁹ Some courts have ruled against the plaintiff,⁷⁰ but in many others, especially those after a final judgment, courts leave the ruling against the defendant in place.⁷¹

¶ 71         It is worth noting that the defendant's failure to raise the issue until the last minute leads to post-hoc justifications for a faulty judgment or jury verdict, when a timely argument might have changed the course of the case.⁷² Because appellate courts tend to uphold jury verdicts, untimely argument can lead to questionable holdings. In one case, a plaintiff apparently failed to identify any specific alleged secrets within its software during a long jury trial, but the defendant does not appear to have raised the issue until post-trial motions. The district court affirmed the jury verdict by resorting to the all-too-familiar "combination trade secret" evasion, essentially validating the plaintiff's non-identification.⁷³

IV.    Proposals

¶ 72         Having reviewed the policy reasons why identification of alleged secrets is a crucial question, the mistakes courts all too often make when ruling on identification disputes, and the nationwide case law, we are in a position to offer guidelines and standards for ruling on identification disputes in trade secret litigation.

¶ 73         As a general proposition, we believe that courts should require trade secret plaintiffs to identify their alleged secrets in detail as early as possible in the litigation.⁷⁴ What follows are proposals tied to the stage of the litigation and the type of information claimed as secret, with general guidelines appropriate to all identification disputes. We also propose a model interrogatory requesting a precise identification of the plaintiff's trade secret claims.

¶ 74         Some general considerations are appropriate for all identification disputes.

• Separating Identification From the Secrecy Analysis: As described above, courts should always treat the identification requirement as a separate, threshold question before reaching the distinct issue of whether the claimed information actually amounts to a trade secret. Identification is not so much a fact issue as a drafting issue.
• Non-Confidential Identification: Courts should be wary of plaintiffs' purported identifications that list only general, high-level categories or technical terms. One general rule might be that if the list of alleged secrets is not marked as a confidential document or could have been listed verbatim in the complaint without actually disclosing the plaintiff's alleged trade secrets, the list is prima facie insufficient. No plaintiff making a good faith identification would disclose its alleged secrets in a non-confidential document.⁷⁵
• Incomplete Identification: Another basic consideration is that if an identification list expressly includes phrases suggesting that it is incomplete - such as "including," and "among other things" - it should likewise be prima facie insufficient. Some courts have noted the problem of such "catch all" phrases when requiring more.⁷⁶
• Avoid References to Voluminous Documents: Courts should not allow trade secret plaintiffs to point to documents in which trade secrets are said to reside as a substitute for a detailed identification. Documents such as design specifications may contain far more information that what is claimed as trade secrets, and reading a complex document may not inform the reader what precisely is being asserted as secret.⁷⁷ As an example, the Southern District of New York once recognized this problem by holding that a mere list of documents was an insufficient identification. The court required the plaintiff to identify all trade secrets claims, to list all documents referring to such claims, and "to key all documents or portions thereof to specific trade secrets and confidential information alleged to have been misappropriated" because "[a]t the very least, a defendant is entitled to know the bases for plaintiff's charges against it."⁷⁸
• Requiring Identification of Combination Trade Secret Claims: We also believe that courts should require identification of alleged "combination trade secrets," and should not confuse the existence of such allegations with whether identification of particular combinations is necessary. We described above several rulings, mistaken in our view, where trade secret plaintiffs asserted "combination" secrets and avoided having to identify them. But many other courts have correctly held that trade secret plaintiffs must identify "combination trade secret" claims just as they must identify individual trade secret claims.⁷⁹ We believe that these decisions reflect the better reasoning, and should be followed by other courts. One such ruling, an early 1958 decision by a federal court in Wisconsin , is worth quoting for the court's indignation at the plaintiff's refusal to identify its combination claims of one hundred unspecified modifications: Just specify the hundred different machines you claim, and diagram them. Let's find out what you claim was a trade secret that was improperly communicated to and used by the defendant. If there are a hundred, let's have a hundred, but let's have it specific so when this case comes on for trial, or if the defendant wants to take further discovery on those matters they will know what the issues are going to be and the court will know what the issues are going to be, and we won't come in here with a broad shotgun charge and be weeks putting in testimony on matters that could be handled in very short order. I think they are entitled to have that made very definite.⁸⁰
• Keep the Identification Within the Scope of the Complaint: A final general consideration applicable at any stage of the case is that a plaintiff should not be permitted to allege trade secrets outside of the fact pattern pleaded in the complaint. While this may be rare, we have seen at least one case where a plaintiff alleged a customer list-type set of allegations in a complaint against its former salespeople, but then generally described hardware-based trade secrets in its California identification statement. In an unpublished ruling, the court granted the defendants' motion for an order limiting the scope of the trade secret claims after the defense raised the basic principle that the alleged secrets were beyond the claims and defenses at issue in the complaint.⁸¹

¶ 75         Another important consideration is that the possibilities for identification differ according to the type of information being claimed as trade secrets. Some information can only be identified by naming it, such as customer contact information. With information in source code, however, there can be more than one plausible way to provide a precise identification.

• > Customer Lists and Business Information : It should be clear that in cases involving simpler types of information such as customer lists, there are no choices other than defining exactly what the alleged secret is or merely listing generic categories. When a plaintiff claims trade secrets in customer list information, pricing or sales information, or business or marketing plans, it should be easy to tell the defendant exactly what the alleged secrets are - the plaintiff can simply name the supposedly secret customers, prices, ideas, and the like.⁸²
• > Formulas, Measurements, and Mathematical Information : As complex as chemical formulas, measurements, and math-based calculations can be, they too can be identified only by stating exactly what the item is: the numerical measurements or dimensions, the calculation expressed in mathematical terms, and so on. The same precise and detailed nature that can make this type of information secret also makes it easy to fully identify.
• > Software Code : Identification of trade secret claims in software code can take many forms. For example, trade secrets could exist as (1) the functionality of compiled and executable object code; (2) source code implementing higher level algorithms that may or may not be secret; (3) information or formulas within source code; (4) algorithms or architecture; or (5) data structure items.⁸³ At the same time, software can contain non-secret information in those same categories, as well as auto-generated code, open source material, or basic code mandated by the programming language or type of program. Identification of each of these categories is thus worthy of independent consideration.

¶ 76         In the rare case where a trade secret plaintiff alleges that executable object code was misappropriated, the plaintiff should name the executable files, and identify what about their functionality is alleged to be secret.⁸⁴ Second, where the plaintiff alleges misappropriation of source code, it should identify the specific lines of code or programs claimed to be secret by, for example, printing out the code on paper with numbered lines and identifying the allegedly misappropriated lines by page and line number, by highlighting, or by color-coding.⁸⁵ Third, algorithms or formulas existing within code should be identified with exactitude just like mathematical information. Fourth, in the case of algorithms, the plaintiff should identify the precise combination of functions which comprise the algorithms at issue. Similarly, the higher-level architecture of the software should be identified by detailing the combination of the specific algorithms employed. Fifth, where secret data structures are alleged, the nature of those structures should be defined with particularity.⁸⁶

• Mechanical Devices: Trade secrets might be embodied in mechanical devices that include secret parts unknown to the public or a secret combination of publicly known parts.⁸⁷ A plaintiff alleging trade secret claims about a secret part should identify that part in detail. If the plaintiff alleges that the trade secret is a combination of publicly known parts, the plaintiff should identify that combination, and the court should limit the plaintiff's ability to modify the alleged combination.⁸⁸
• Chemical Mixtures and Recipes: Mixtures, whether for something as simple as some food product recipes or the combination of ingredients in a certain brand of gasoline, should be identified by the combination of publicly known elements - including the measurements or ratios for each ingredient.
• Negative Information: Negative information - sometimes called "what not to do" - can pose difficulties. One prominent commentator believes that because the total invention history of a combination-type trade secret can contain a body of negative knowledge in the sense of many steps not taken and choices not made, identifying that sum total should not be required.⁸⁹ We agree in part. It is unlikely that the defendant will be accused of actually taking and using that whole panoply of negative items, and thus there is no need to force the plaintiff to draft a complete invention history. However, where a plaintiff specifically accuses a defendant of taking and using one or more items of negative information, we see no policy reason not to require that those items also be defined in detail.
• Destroyed Information: Perhaps the hardest question involves an extreme scenario where a defendant physically destroys information that was valuable and secret, without leaving any copies behind. We know of no cases on this subject, and have never seen it in practice. A deserving plaintiff may have no ability to precisely identify what was destroyed, but a malicious plaintiff could claim purported value in information that never really existed, or that was of little actual value. This is an area where courts should have wide discretion to assess the facts of particular cases. For example, if it were impossible for plaintiff to identify the destroyed secret, a court could require identification of the circumstances of the alleged creation, destruction, and plaintiff's ownership in the information.

¶ 77         As discussed above, a court's handling of the identification dispute differs depending on the stage of the case. We believe that the pleading stage is not the time to consider identification questions, except in cases where the complaint fails the ordinary rules for indefinite statements.⁹⁰

¶ 78         However, we believe that when a trade secret plaintiff requests preliminary injunctive relief that could seriously impact the defendant - by shutting its business, limiting a person's employment options, scaring away investors and customers, and the like - courts should require an identification of the alleged trade secrets at issue with a substantial degree of detail. There might be exceptions for highly unusual circumstances - where, hypothetically, there is concrete evidence that the defendant is planning an imminent foreign transfer of an immense amount of stolen software code, and there is no time to provide all the details. Courts are capable of separating such extreme facts from routine motions against departing employees who have just started a new company.

¶ 79         Most important, we believe that courts in jurisdictions that have not yet enacted a pre-discovery identification requirement for trade secret cases should do so, both as a valuable case management process and to encourage pre-lawsuit investigations. In addition to the trade secret pre-discovery cases described above, the approach several federal courts have taken in patent cases provides a useful analogy. Federal district courts in California, Georgia, Pennsylvania, and Texas have enacted special local rules for patent cases that require a more specific identification of the patent claims than already exist in the published patent. Specifically, these districts require patentees to explain with precision at a very early stage exactly what patent claims are being asserted and why the allegedly infringing product or process satisfies each element of the asserted patent claims.⁹¹ As one court explained, the patent local rules were adopted to "place the parties on an orderly pretrial track," "require the plaintiff to carefully prepare for the filing of a patent suit," and "require parties to crystallize their theories of the case early in the litigation and to adhere to these theories once they have been disclosed."⁹²

¶ 80         The benefit of identification in the trade secret context is even greater. In a patent case, the court and the defendant have notice of the patent's claims and have a description of the invention from the published patent itself. The local rules described above go a step further by removing any mystery about what particular claims the plaintiff will assert and how the plaintiff intends to argue that those claims cover an accused product or process. In a trade secret case, and absent an identification requirement, the court and the defendant cannot know how the plaintiff will allege that trade secrets were misappropriated, and, even worse, cannot know what the trade secret claims are. The need for identification in trade secret cases is thus more critical than in patent cases. Enacting local rules akin to these patent-based rules would be a worthy goal for trade secret law. In any event, courts can require pre-discovery identification by common law for case management purposes.

¶ 81         Finally, detailed identification should always be required by the summary judgment stage, assuming that discovery has taken place. But where a defendant fails to raise the identification issue until after trial, it is understandable why so many courts have refused to reverse on that basis.

¶ 82         As discussed above, the defense sometimes compounds the identification problem by serving badly-phrased discovery requests or, more importantly, failing to timely raise the issue. By failing to ask for a totally precise identification, a defendant can allow the plaintiff to get by with generic concepts and categories, and alter its claims without judicial review.

¶ 83         In one case, for example, the defendant's interrogatory apparently requested only that plaintiff describe the alleged secrets and documents in which they were contained. When the plaintiff responded with a generalized statement pointing to 17 pages and describing a "manufacturing process" "including" seven general concepts, the defendant moved to compel. But the court found the generalized identification sufficient.⁹³ Perhaps if the defendant had served a better-worded interrogatory demanding precision, the result would have been different.

¶ 84         Likewise, a defendant in a California case made a mistake when it tied its identification interrogatory to California's pre-discovery statute - which does not require absolute precision - instead of asking for complete precision.⁹⁴ Yet another defendant asked only for the identification of documents in which the plaintiff's alleged secrets were to be found, instead of asking for a precise identification of the claims themselves.⁹⁵ It therefore failed to seek the maximum degree of detail it could have requested. Similarly, a failure to press for complete identification in deposition questioning can allow the plaintiff latitude to alter its claims afterwards.⁹⁶

¶ 85         We believe that a well-worded interrogatory or other discovery request should demand a totally precise, complete identification of each alleged trade secret. A model interrogatory with an accompanying definition is as follows:

¶ 86         Identify with precision and specificity each and every alleged trade secret [Plaintiff] contends [Defendant] misappropriated. "Identify with precision and specificity each and every alleged trade secret" as used herein means to provide a specific description of each such alleged trade secret, on an individual basis for each such alleged trade secret, in such a manner that the exact identity, scope, boundaries, constitutive elements, and content of each such alleged trade secret are fully disclosed in writing, including any asserted combinations, [and with precision above that required by California Code of Civil Procedure section 2019.210]. Plaintiff should not rely on any vague or conclusory phrases that do not separately list and describe each such alleged trade secret.

¶ 87         This model request requires a totally precise identification of each alleged secret, without dissembling or deliberate obfuscation. It alerts the reader to typical evasion practices, and thus educates a court ruling on a motion to compel about what exactly is sought and what is insufficient. The request also makes clear that more is sought than what some jurisdictions require at the pre-discovery stage - California law in this model - though of course the request can be adapted to different jurisdictions.

¶ 88         The question sometimes arises whether a trade secret plaintiff can unilaterally amend its identification of trade secret claims as the case proceeds. One can envision circumstances where amendment would be proper, such as where a plaintiff learns that a defendant has misappropriated trade secrets beyond those first believed to be at issue. But one can also envision circumstances where the plaintiff drops one set of meritless claims in order to pursue another, alters claims to avoid summary judgment or to add in new claims just before trial, or changes definitions of existing claims to confound the defendant's ability to research the public domain.

¶ 89         A 2004 federal court case applying California law created a rule that we believe makes sense and should be widely adopted. The court held that because a statement identifying the plaintiff's alleged trade secrets is akin to a pleading, the plaintiff would have to show good cause to amend the statement, just as it would have to do in order to amend its complaint.⁹⁷ Subjecting amendments and alterations to judicial review would help prevent the problems we have experienced in many cases where the alleged secrets change repeatedly as the case proceeds, often as the close of discovery nears.

¶ 90         Another good practice is to prevent the plaintiff from amending its identification of alleged secrets in order to avoid a defendant's pending summary judgment motion.⁹⁸ The same practice should apply if the plaintiff claims a "combination trade secret" and tries to alter its sub-elements in the face of a summary judgment motion.⁹⁹ While this might be inappropriate where discovery has only just begun and the motion is filed too early, we believe that courts would promote and invite litigation abuses if they allowed trade secret plaintiffs to alter the claims and escape a motion for summary judgment filed after significant discovery has taken place.

¶ 91         In turn, some courts have refused to allow amendment and addition of new trade secret claims after discovery closes, and that too should be a universal rule.¹⁰⁰

¶ 92         Courts have issued sanctions in several trade secret cases where plaintiffs failed to identify their alleged secrets despite defense efforts to obtain more information.¹⁰¹ Others have declined to award sanctions even where the failure to identify (among other problems) was manifest.¹⁰² Rule 11 and similar state rules already require that a plaintiff understand precisely the alleged secrets that it accuses the defendant of misappropriating, and there is no reason the plaintiff should be unable to share this understanding - essential to the plaintiff's core case—with the defendant. Because non-identification is a lawyers' tactic used to gain an unfair litigation advantage, we believe that sanctions should be readily awarded where a trade secret plaintiff tries to supply as little information as possible and hopes that the court will not require more.

V.    Conclusion

¶ 93         Disputes regarding identification of alleged trade secrets are common in trade secret litigation around the country. Courts thus far have not articulated a uniform set of standards and guidelines to address the problem. But such rules are needed, because trade secret plaintiffs generally refuse to precisely identify their trade secret claims unless the court forces them to do so. Our proposals would ensure that the many policy grounds supporting a precise identification of alleged secrets would be satisfied in any given case.

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