Trade secrets plaintiffs will weigh venue more heavily in 2026, given a circuit split over when and how they must identify the secrets at issue, Fenwick’s Jessica Kaempf told Law360 in a roundup of trade secrets cases to watch in 2026.
“[W]e're seeing different courts going different ways on this issue,” she said, explaining how the Fourth, Ninth, and Federal Circuits have variously weighed in on the timing and scope of trade secret disclosure.
The Ninth Circuit has said the federal Defend Trade Secrets Act does not require identification of secrets with particularity before discovery, while the Fourth Circuit has said that plaintiffs need to identify secrets with sufficient particularity at the pleadings stage. Most recently, the Federal Circuit applying Ohio state law limited trade secrets to what was specifically identified in interrogatory responses, “essentially saying you need to identify your trade secrets with particularity during … discovery and you can't supplement after that,” she noted.
The contrasting appellate opinions will likely impact where plaintiffs sue and whether they pursue state or federal trade secret claims, she noted.
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