Trade-secret litigation poses a problem distinct from other types of intellectual property litigation. In litigation over patents, copyrights and trademarks, the asserted intellectual property is publicly filed and its specific contours are clearly identified. Trade secrets, however, by definition are not publicly available. Therefore, a description of the alleged trade secrets at issue in the litigation must come from the plaintiff.
A plaintiff has an incentive to avoid specifically identifying its trade secrets until late in discovery. A defendant, on the other hand, generally wants the plaintiff to identify the alleged trade secrets as early as possible in the litigation and to remain bound to that description. Early identification provides a defendant with notice of the precise claims against it, allows it to prepare an appropriately tailored defense and, most importantly, frames the scope of discovery.
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