A recent Ninth Circuit decision highlights a continuing dispute among federal courts as to whether a plaintiff alleging trade secret misappropriation must disclose its trade secrets before taking discovery about the alleged misappropriation. The Ninth Circuit recently held that the Defend Trade Secrets Act (“DTSA”) does not require pre-discovery disclosure, but many courts across the country have held otherwise. As such, would-be trade secret plaintiffs should be ready to identify their trade secrets with a sufficient level of specificity to avoid not only a motion to dismiss but also a potential delay in discovery into their allegations of misappropriation.
Congress enacted the DTSA, 18 U.S.C. § 1836, et seq., to harmonize trade secret law under a single federal cause of action, providing easier access to federal courts and making trade secret protection more predictable nationwide. See Syntel Sterling Best Shores Mauritius Ltd. v. The Trizetto Group, Inc., 68 F.4th 792, 807 n. 22 (2nd Cir. 2023) (“Congress thus sought to harmonize the differences in state trade secret law by enacting the DTSA”); see also S. Rep. No. 114-220, at 2-3 (2016) (“This narrowly drawn legislation will provide a single, national standard for trade secret misappropriation . . . .”). The DTSA immediately made progress toward this goal by defining key terms germane to allegations of trade secret misappropriation, such as what constitutes a “trade secret,” “misappropriation” of a trade secret, and “improper means” through which misappropriation occurs. See 18 U.S.C. § 1839. These definitions largely tracked those set forth in the Uniform Trade Secrets Act, a model law created by the Uniform Law Commission on which the vast majority of state trade secret statues are based.1 See, e.g., UrthTech LLC v. GOJO Industries, Inc., 22-cv-6727 (PKC), 2023 WL 4640995, at *9 (S.D.N.Y. Jul. 20, 2023) (“The definition of a trade secret and requirements for establishing misappropriation of trade secrets are substantially the same under the DTSA and [the Ohio Uniform Trade Secrets Act]”) (quoting Corporate Lodging Consultants, Inc. v. Szafarski, 21-Civ-1611, 2021 WL 3709914, at *5 (N.D. Ohio Aug. 20, 2021)). Despite this progress, federal courts continue to disagree on some aspects of the statute’s application.
One notable example concerns the procedural question of whether a plaintiff must identify its allegedly misappropriated trade secrets before obtaining discovery from the defendant, and if so, what degree of specificity is required. The Ninth Circuit recently held that the DTSA “does not set out requirements for the specific timing or scope for identifying trade secrets,” nor does it “require a plaintiff to identify with particularity its alleged trade secrets from the start,” thereby settling a long-standing debate among federal courts in California on this issue. See Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., 149 F. 4th 1081, 1085, 1089 (9th Cir. 2025). However, the question is far from settled on the national stage.
The Quintara Decision
In Quintara, the Ninth Circuit addressed the question of “at what point in the case, and with how much particularity, a DTSA plaintiff must specify its purported trade secrets.” Quintara Biosciences, Inc., 149 F.4th at 1085. Plaintiff Quintara Biosciences, Inc. was a DNA-sequencing-analysis company engaged in business with defendant Ruifeng Biztech, Inc. Id. Ruifeng “lock[ed] Quintara out of its office, [took] possession of Quintara’s equipment, and hir[ed] Quintara employees,” after which Quintara sued for trade secret misappropriation under the DTSA, but not under the California Uniform Trade Secrets Act (“CUTSA”). Id. at 1085-1086. Quintara identified nine trade secrets that had been allegedly misappropriated. Ruifeng moved for a protective order halting discovery under CUTSA section 2019.210, which requires that “before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity.” Id. at 1086; see also Cal. Civ. Proc. Code § 2019.210.
The district court, citing § 2019.210, ordered Quintara to provide (1) a summary of each specific trade secret; (2) a description of how it has derived independent economic value by not being generally known; (3) a description of how Quintara has maintained its secrecy; and (4) “each of the precise claimed trade secrets, numbered, with a list of the specific elements for each, as claims would appear at the end of a patent.” Id. at 1086. Quintara responded by filing an amended trade secret disclosure, but Ruifeng moved to strike, arguing the disclosure was inadequate. Id. The district court granted Ruifeng’s motion and struck nine of Quintara’s eleven trade secrets, finding that Quintara failed to satisfy the “reasonable particularity” rule of § 2019.210. Id.
On appeal, the Ninth Circuit held that the district court’s decision was an abuse of discretion. “Whether a trade secret is identified with ‘sufficient particularity’ is a question of fact . . . and a district court may grant summary judgment only if there is no genuine dispute that a plaintiff could identify a trade secret with ‘sufficient particularity.’” Id. at 1087-88 (emphasis added). The court recognized that the “DTSA does not set out requirements for the specific timing or scope for identifying trade secrets. Instead, the conventional procedures under the Federal Rules of Civil Procedure apply.” Id. The district court had, according to the Ninth Circuit, “relied on a California rule that does not control a federal trade-secret claim.” Id. at 1089.
Thus, the Ninth Circuit removed from the ambit of DTSA claims the requirement for pre-discovery identification of asserted trade secrets with sufficient particularity. While that was the end of the analysis in Quintara, however, it’s just another data point in a nation-wide dispute amongst federal courts as to whether trade secrets must be sufficiently described to a defendant prior to plaintiffs obtaining discovery. While some courts already follow the Quintara rule, others require plaintiffs to identify trade secrets with some level of particularly before opening discovery into their alleged misappropriation.
Continuing Disagreement Amongst Federal District Courts
The issue of whether a plaintiff must identify its asserted trade secrets with particularity before the opening of discovery was present well before the passage of the DTSA. For example, in Vesta Corp. v. Amdocs Mgmt. Ltd., the U.S. District Court for the District of Oregon required plaintiff to identify with reasonable particularity the allegedly misappropriated trade secrets, even where the Oregon Uniform Trade Secrets Act (“OUTSA”) did not require such pre-discovery disclosure. 147 F. Supp.3d 1147, 1148-49 (D. Or. 2015); ORS 646.461, et seq. In that case, plaintiff Vesta Corp. (“Vesta”) alleged that defendants obtained certain trade secret information in relation to defendants’ due diligence in assessing whether to purchase Vesta, and later retained and used those trade secrets without permission. Id. at 1148-49. Plaintiff described its allegedly misappropriated trade secrets as follows:
Detailed architectural drawings and sequence flow diagrams that depicted, on a step-by-step basis, how [plaintiff] would design and implement its payment solution for Metro PCS … [and] detailed information about how [plaintiff] implements its system of direct customer notifications to optimize payments and customer retention, including detailed information about [plaintiff’s] proprietary “Text-to-Pay” system … [and] detailed information about [plaintiff’s] customer relationship management tools, and how those tools serve to optimize customer loyalty and MNO revenues.
Id. at 1149-50. Defendants filed a motion for a protective order to excuse their responding to discovery on the trade secrets until Vesta identified its trade secrets with reasonable particularity. Id. at 1148-1149.
The court in Vesta Corp. found that some identification of allegedly misappropriated trade secrets was necessary before discovery would be allowed, but recognized that there is “no bright-line answer as to the degree of particularity that must be disclosed in order for discovery to proceed in a trade secrets case.” Id. at 1150. The court acknowledged “the ‘growing consensus’ of courts from around the country who have applied the ‘reasonable particularity’ standard to determine whether a party alleging a claim for misappropriation of trade secrets has sufficiently identified its trade secrets before it may compel discovery of its adversary’s trade secrets,”2 and further explained “that such a requirement is not limited to cases applying California’s unique statutory requirement[.]” Id. at 1153. “Rather, the ‘reasonable particularity’ standard reflects the Court’s authority, pursuant to Federal Rule of Civil Procedure 26 requirements of early disclosure of evidence, and the Court’s authority to control the timing and sequencing of discovery in the interests of justice.” Id. (emphasis added). The court also illustrated three policies commonly relied upon in support of allowing a plaintiff to obtain discovery prior to identifying its trade secrets:
First, courts have highlighted a plaintiff’s broad right to discovery under the Federal Rules of Civil Procedure. Second, the trade secret plaintiff, particularly if it is a company that has hundreds or thousands of trade secrets, may have no way of knowing what trade secrets have been misappropriated until it receives discovery on how the defendant is operating. Finally, if the trade secret plaintiff is forced to identify the trade secrets at issue without knowing which of those secrets have been misappropriated, it is placed in somewhat of a “Catch–22” [because] [i]f the list is too general, it will encompass material that the defendant will be able to show cannot be trade secret. If instead it is too specific, it may miss what the defendant is doing.
Id. at 1151-52 (quoting BioD, LLC v. Amnio Tech., LLC, 2014 WL 3864658, at *4 (D. Ariz. Aug. 6, 2014). The court interpreted “reasonable particularity” to consist of a description of the trade secrets at issue that is sufficient to (a) put a defendant on notice of the nature of the plaintiff’s claims and (b) enable the defendant to determine the relevancy of any requested discovery concerning its trade secrets. Id. at 1155 (citing Hill v. Best Med. Int’l, Inc., 2010 WL 2546023, at *3 (W.D. Pa. June 24, 2010)).
The Court held that Vesta failed to identify its alleged trade secrets with reasonable particularity under that definition, as the trade secret descriptions offered by Vesta were too “broadly stated,” and “lack[ed] particularity.” Id. at 1155-56. Consequently, defendants did not need to respond to the discovery requests related to the allegedly misappropriated trade secrets until Vesta’s trade secrets had been sufficiently identified. Id. at 1158.
Similarly, in Wilbur-Ellis Co. LLC v. Gompert, plaintiff alleged that a number of former employees secretly commenced work for a competitor while still employed by plaintiff and facilitated that activity by misappropriating plaintiff’s trade secret information. No. 8:21CV340, 2023 WL 375125, at *1 (D. Neb. Jan. 24, 2023). To prove its allegations, plaintiff sought to serve third-party discovery after discovery attempts on defendants failed. Id. Prior to allowing discovery the U.S. District Court for the District of Nebraska ordered plaintiff to “disclose, with specificity, the trade secrets it alleges were misappropriated and file the list of record . . . to assist the court in determining the scope of relevant discovery, and to prevent a ‘fishing expedition’ on a third-party competitor.” Id. Plaintiff subsequently filed an identification of trade secrets (“ITS”), but the magistrate judge found it did not contain trade secret information because it provided only “general categories of information and descriptions of Defendants’ job responsibilities.” Id. at *2.
In its objections to the order, plaintiff argued that the magistrate judge misapplied the law because it did not “cite any requirement under Nebraska or Eighth Circuit law for a plaintiff to specifically identify the trade secrets before pursuing discovery.” Id. In denying the objection, the district court recognized “a growing consensus of courts that require a party alleging misappropriation of trade secrets to identify those trade secrets with a [sic] least some level of specificity before discovery.” Id. at *3 (citing Argos USA LLC v. Young, No. 1:18-CV-02797-ELR, 2021 WL 3081332, at *5 (N.D. Ga. Feb. 2, 2021) (listing cases)). This was notwithstanding the fact that “neither Nebraska nor the Eighth Circuit requires a plaintiff [to disclose its trade secrets pre-discovery] by virtue of statute or otherwise.” Id. Indeed, the defendant did “not deny that courts routinely require plaintiffs to identify their trade secrets with reasonable particularity before discovery.” Id. (citing, e.g., DIRTT Env’t Sols., Inc. v. Henderson, No. 1:19-CV-144 DPB, 2021 WL 247895, at *2 (D. Utah Jan. 25, 2021); Kalencom Corp. v. Shulman, No. CV 17-5453, 2018 WL 1806037, at *4 (E.D. La. Apr. 17, 2018)).
The court in Carlisle Interconnect Techs. Inc. v. Foresight Finishing LLC likewise found that “[c]ourts generally require ‘a party alleging a claim for misappropriation of trade secrets . . . to identify its alleged trade secrets with reasonable particularity before it will be allowed to compel discovery of its adversary’s trade secrets.’” No. CV-22-00717-PHX-SPL, 2023 WL 2528324, at *3 (D. Ariz. Mar. 14, 2023) (quoting Switch Commc’ns Grp. v. Ballard, No. 2:11-cv-00285-KJD-GWF, 2012 WL 234929, at *4 (D. Nev. June 19, 2012) (collecting cases)). In that case, plaintiff terminated four employees who allegedly joined a competitor, bringing with them a proprietary selective plating process. Id. at *2. Defendants refused to allow discovery into their plating process until plaintiff identified with particularity the trade secrets that were allegedly misappropriated. Id. at *3. The court found plaintiff’s disclosure of the entirety of its selective plating process to be insufficiently broad, explaining that “[a]lthough Plaintiff may ultimately be permitted to claim the entire Selective Plating Process performed by its machines as a trade secret, Plaintiff must, at this stage, identify the steps in the process and explain how those steps make their method or process unique.” Id. at *4. Plaintiff, the court held, failed to identify the allegedly misappropriated trade secrets with reasonable particularity, so the court denied plaintiff’s requests for discovery related to defendant’s machines that allegedly embodied plaintiff’s trade secrets. Id. at *5.3
Leaseleads Inc. v. Cardinal Group Holdings LLC went the other way. Civil Action No. 24-cv-01329-SKC-TPO, slip op. at 2 (D. Co. Nov. 6, 2025). In that case, plaintiff, a technology company that developed apartment leasing software, alleged that defendant retained plaintiff’s source code pursuant to a reselling agreement between the two companies, but then unlawfully used the code to develop its own competing product. Id. at 2-3.
In discovery, defendant argued that “a threshold requirement in any trade secret case,” is that plaintiff sufficiently identify its trade secrets with reasonable particularity. Id. at 4. Noting that there was no controlling authority from the 10th Circuit on the issue, the court held that it was not necessary for plaintiff to identify its allegedly misappropriated trade secrets with reasonable particularity prior to taking discovery, based upon the “large body of persuasive authority on this point.” Id. at 4 (citing Skye Orthobiologics, LLC v. CTM Biomedical, LLC, 20-cv-03444 DMG (PVCx), 2021 WL 6102432, at *6 (C.D. Cal. Aug. 27, 2021) (rejecting defendants’ “sequencing” argument that would require plaintiff to identify trade secrets with particularity at the outset of the case); see also, e.g., Huawei Techs. Co., Ltd. v. Huang, No. 4:17-cv-00893, 2018 WL 3862061, at *3-*4 (E.D. Tex. Aug 14, 2018) (finding that pre-discovery identification of allegedly misappropriated trade secrets is unnecessary); Polydyne Software, Inc., v. Celestica Int’l, Inc., No. A-14-CV-797 LY, 2014 WL 12479201, at *2-*3 (W.D. Tex. Dec. 31, 2014) (recognizing that “neither Texas nor Fifth Circuit law requires pre-discovery identification of trade secrets.”).
The longer this debate continues, the more likely the Supreme Court will face a circuit split. In the meantime, trade secret plaintiffs should take the time to sufficiently identify the allegedly misappropriated trade secrets, at least for themselves, so that they can adequately describe them in a complaint. See, e.g., Decurtis LLC v. Carnival Corp., No. 20-22945-CIV, WL 1968327, at *4-*8 (S.D. Fla. Jan 6, 2021) (dismissing misappropriation claims in part because plaintiffs failed to adequately identify trade secrets with sufficient particularity); Zirvi v. Flatley, 433 F.Supp.3d 488, 465-66 (S.D.N.Y. 2020) (same). Plaintiffs should also be prepared to disclose the trade secrets as required during litigation, either prior to discovery or in response to the inevitable interrogatory asking for a description of the asserted trade secrets. Companies should also consider implementing trade secret asset management programs to preemptively identify at least their tier-one trade secret assets and ensure that reasonable measures are being taken to protect them. That will help companies be prepared to quickly file complaints and motions for preliminary injunctive relief that meet the governing specificity standard.
[1] New York is the only U.S. state that currently does not have a dedicated trade secret statute.
[2] The Court in Vesta identified a number of pre-DTSA cases in which federal courts required a party alleging a claim for misappropriation of a trade secret to identify its alleged trade secrets with reasonable particularity before allowing discovery into an adversary’s trade secrets: Engelhard Corp. v. Savin Corp., 505 A.2d 30, 12 Del. J. Corp. L. 249 (Del.1986), citing Xerox Corp. v. Int’l Bus. Machs. Corp., 64 F.R.D. 367, 371–72 (S.D.N.Y.1974); DeRubeis v. Witten Techs., Inc., 244 F.R.D. 676, 680–81 (N.D.Ga.2007); Automed Techs., Inc. v. Eller, 160 F.Supp.2d 915, 925 (N.D.Ill.2001); Dura Global Techs., Inc. v. Magna Donnelly, Corp., 2007 WL 4303294 (E.D.Mich.2007); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 148 F.Supp.2d 1322 (S.D.Fla.2001); and Ikon Office Sols. v. Konica Minolta Bus. Sols., 2009 WL 4429156, *4–5 (W.D.N.C.2009).
[3] Arizona is in the Ninth Circuit and so there is the potential that the finding in this case may have been different if decided after Quintara.