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Build a dated, source-linked record that identifies the claimed trade secret, shows how it was kept secret, and distinguishes system access from acquisition, disclosure, or use. An access log can support an investigation, but by itself it does not establish that a person learned, copied, disclosed, or used a trade secret. Preserve relevant electronically stored information (ESI) through reasonable steps and plan how to protect confidential material in the litigation record.
This is a general U.S. federal framework based on the Defend Trade Secrets Act (DTSA) and the Federal Rules of Civil Procedure. State law, local rules, court orders, discovery agreements, and case-specific facts may change what is required; have counsel determine the governing law and procedure.
What the record needs to establish
Under the DTSA, information qualifies as a trade secret only if its owner has taken reasonable measures to keep it secret and it derives independent economic value from not being generally known or readily ascertainable. The statute covers information in many forms, but a litigation record should identify the particular information at issue rather than rely on a broad label such as a customer database, formula, or source code. See 18 U.S.C. § 1839.
Misappropriation is not synonymous with access. The DTSA addresses acquisition by improper means, as well as disclosure or use under specified circumstances involving knowledge that the information was a trade secret and was acquired through improper means or subject to a duty to maintain secrecy or limit use. It excludes lawful means such as independent derivation and reverse engineering from improper means. See 18 U.S.C. § 1839.
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- Identity: What specific information is claimed to be secret, and which version or portion is at issue?
- Secrecy measures: What steps were taken to restrict access or use, and how did those steps work in practice?
- Event: What evidence supports acquisition, disclosure, or use, separately from the fact that an account could access a system?
- Knowledge or duty: What evidence bears on what the person knew about the information, its source, or an obligation to keep it confidential or limit its use?
- Alternative explanations: Is there evidence of ordinary authorized work, independent development, lawful reverse engineering, or another explanation?
Keep each proposition tied to its own evidence. Do not describe an inference from a login as direct proof of what a person saw or did.
Define the asserted secret and document secrecy controls
Assign a stable identifier to each asserted secret or coherent set of information. Create a controlled description detailed enough to distinguish it from public information, general skill or knowledge, and independently developed material. Use the same identifier and description consistently in pleadings, discovery responses, declarations, and expert work. Counsel should assess how much detail can safely appear in public filings.
Preserve dated evidence of the measures used to protect the information. Depending on the facts, that may include confidentiality labels, access-control policies, role permissions, training records, nondisclosure agreements, limited-use agreements, and records showing how permissions were granted and enforced. No single label, policy, or contract is specified by the DTSA as sufficient on its own; the question is whether the measures were reasonable in context.
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Map people, accounts, systems, and permissions
Make a custodian and system map for the relevant period. Include likely repositories and the people or administrators who can explain them. A map helps distinguish what a named person could access from what an account, device, or automated process recorded.
- Employees, contractors, vendors, and other relevant custodians, including role changes.
- Named accounts, shared accounts, service accounts, and devices, with access grants and revocations, dates, and approvers where available.
- Repositories and platforms such as file shares, collaboration tools, source-code or design systems, cloud storage, removable media, and relevant backups.
- Audit logs and other records that may show viewing, downloading, printing, exporting, sharing, or later activity.
State the limits of attribution. A record may identify an account without establishing who used it, or a device without showing which person was present. Document what supports person-to-account attribution and what remains uncertain.
Preserve and collect ESI with its context
Identify potentially relevant ESI early, including systems with short retention windows, cloud services, devices, communications, audit logs, document histories, and third-party records within the party’s control. Work with counsel to assess the scope and proportionality of preservation and collection for the matter.
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- Secure Entry —Data on these flash drives cannot be accessed without the correct alphanumeric password of 8 to 16 characters. A password indication option is available for this flash drive. The hint cannot match the password.
For each source, record its owner or administrator, retention schedule, time zone and clock configuration if known, collection method, collection date, collector, and custody transfers. Preserve unaltered source material where feasible. Keep working copies and document filtering, conversion, export, or other transformations so the path from source to exhibit can be explained. Record gaps and whether missing information may be restored or replaced.
Federal Rule of Civil Procedure 37(e) concerns ESI that should have been preserved in anticipation or conduct of litigation, was lost because reasonable steps were not taken, and cannot be restored or replaced through additional discovery. A court may order measures no greater than necessary to cure prejudice. The more severe listed measures, including an adverse inference or case-ending measures, require a finding that a party acted with the intent to deprive another party of the information’s use in litigation. Loss does not automatically produce an adverse inference.
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Build an auditable event chronology
Use one row per event or factual proposition, and preserve a reference to the underlying native record. A chronology should make it possible for another reviewer to understand what happened, when, how the record was obtained, and how strong the inference is.
- Asserted-secret identifier and relevant version.
- Person, account, device, and role, with attribution evidence and limitations.
- Event date and time, including time zone and any known clock uncertainty.
- Source system and location of the native record.
- Event type, such as a permission change, view, download, transfer, external share, disclosure, or later use.
- Evidence bearing on knowledge, confidentiality obligations, limited-use duties, or notice.
- Corroborating and contrary evidence, including plausible alternative explanations.
- Preservation and collection status, plus the custodian, witness, or exhibit needed to authenticate or explain the record.
Do not combine distinct events into a single conclusion. For example, record a permission grant as a permission grant, a download as a download, and evidence of subsequent use as a separate proposition. A technical event may support an inference, but the chronology should show what it does and does not prove.
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Maintain a gap log alongside the chronology. Note missing logs, expired retention periods, shared credentials, clock drift, incomplete attribution, or sources that have not yet been collected. Flag evidence that could support an innocent or lawful explanation, including routine business access, independent development, or lawful reverse engineering.
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This is useful for both investigation and presentation. Counsel can prioritize additional discovery, consider whether missing information can be restored or replaced, and avoid presenting an inference as direct proof. For a responding party, the same disciplined review can identify records that contextualize access and correct an incomplete account.
Protect the secret during discovery
Plan confidentiality protections with counsel before producing or filing sensitive material. Options may include a protective order, access tiers, redactions, secure transfer, restricted access, and sealing where authorized by the court and applicable rules. Consider how to handle unrelated personal, privileged, or third-party information that appears in a forensic collection.
DTSA § 1835 directs courts to take appropriate action to preserve the confidentiality of trade secrets in proceedings under the chapter, consistent with applicable procedural and evidence rules. The statute does not prescribe one universal protective-order form. A DTSA seizure application is an extraordinary remedy subject to specific statutory findings and safeguards, not a routine substitute for preservation or discovery planning. See 18 U.S.C. § 1836.
Choose documentation methods by what they can show
No particular tool or collection method is mandated for every trade-secret dispute. Compare available methods against the case’s needs rather than treating a product or technical standard as universally required.
- Coverage: Which systems, users, dates, and event types does the method capture?
- Attribution: Does it identify a person, an account, a device, or only a process?
- Integrity and reproducibility: Can the collection and any transformations be explained and, where appropriate, repeated?
- Retention and recoverability: What may be overwritten, and can missing material be restored or replaced?
- Confidentiality: Can unrelated personal, privileged, or third-party information be protected?
- Proportionality and cost: Is the approach adequate in light of the dispute’s importance, resources, and available alternatives?
These are practical questions for planning and review, not a statutory checklist. Rule 37(e) and its committee note focus on reasonable preservation steps, proportionality, and restoration or replacement.
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