Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols

Summary. This toolkit collects the working documents of trade secret litigation, each introduced by its purpose, the person who should prepare it, and when to use it, and each followed by drafting commentary tied to the governing statutes, rules, and cases. It opens with a model identification statement that meets the reasonable particularity standard, an internal secret-by-secret evidence matrix, a defendant's deficiency letter, and case management provisions that fix the timing, form, and amendment of the identification. The middle templates cover the key provisions of a two-tier protective order with a Rule 502(d) clause, a source code review protocol, a preservation demand letter, a stipulated neutral forensic examination protocol, and a forensic artifact chart with a chain-of-custody log. The final templates address requests for personal email and cloud data that respect the Stored Communications Act, Rule 30(b)(6) topic lists for each side, and a trial confidentiality plan with a secret-by-secret verdict form. The templates reflect the law as of January 2025 and are written for use by trade secret owners and by the employees and competitors they accuse.

The documents that decide most trade secret cases are not the complaint and the verdict. They are a ten-page identification statement, a protective order, and a forensic protocol, usually drafted against a deadline from forms written for patent or contract cases. Those forms leave out exactly the provisions that matter here: who may read the formula, what the neutral examiner may search, and what happens when the list of secrets changes. The templates below put them back in.

How to use this toolkit

Every template opens with three labels: the purpose it serves, the owner who should prepare it, and when to use it. The template follows, then a short drafting commentary with the authorities behind it. Fill in or choose the bracketed text. Start from your district's model protective order and local rules where they exist, and adapt these provisions to them rather than the other way around. The doctrine behind the templates is explained in Identifying Trade Secrets in Litigation: Reasonable Particularity, Sequencing Discovery, and Protecting the Secret While You Sue; the order of tasks is in Managing Discovery in a Trade Secret Case: A Practical Guide and the Trade Secret Identification and Discovery Checklist: A Practical Checklist.

The templates reflect the law as of January 2025. Watch in particular for appellate guidance on whether federal courts may require an identification before discovery in cases pleading only the Defend Trade Secrets Act (DTSA); district courts in California have sometimes borrowed the state rule for such cases, and at least one appeal presenting the question is pending in the Ninth Circuit.

Template 1: Trade secret identification statement

Purpose: a written, numbered description of each asserted trade secret, specific enough to separate it from general knowledge and to frame discovery. Owner: lead counsel for the trade secret owner, drafting with the engineer or business lead who knows the information. When to use: before discovery into the defendant's technology, in the form the court orders (a standalone disclosure, an interrogatory answer, or a California designation under Cal. Civ. Proc. Code § 2019.210).

[PLAINTIFF]'S IDENTIFICATION OF ASSERTED TRADE SECRETS Designated HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY under the Protective Order (Dkt. [__]). Not to be filed except under seal.

1. Scope. Under [the Court's Order of [DATE] / Interrogatory No. [__] / Cal. Civ. Proc. Code § 2019.210], [Plaintiff] identifies below each trade secret it contends [Defendant(s)] misappropriated. Each numbered paragraph describes one trade secret. Documents cited in a paragraph embody or illustrate the trade secret described in that paragraph; they do not enlarge it.

Trade Secret No. 1 ([short neutral name]). Type: [formula / process / source code / specification / compilation / negative know-how]. Description: [Two to eight sentences stating what the information is: the specific values, steps and operating parameters, selection criteria, or code logic, and what distinguishes it from what is published or generally known in the field.] Where it resides: [document title, Bates number, and page or line; file path, version, and SHA-256 hash value; database and fields]. Developed: [dates and principal developers].

Trade Secret No. 2 ([name]) (combination). Elements: (a) []; (b) []; (c) []. How the elements are combined: []. How the combination operates and why it is not generally known: [__]. [Plaintiff] [does not separately assert any element or subset / separately asserts elements (a) and (b) as Trade Secret No. 3].

Trade Secret No. 4 ([name]) (negative know-how). Description: The fact that [specific approach, material, or parameter range] [fails / underperforms] for [purpose], as established by [test report identifiers and dates].

[Continue numbering. Never reuse a number.]

Amendment. [Plaintiff] will amend this identification only as permitted by [the Court's Order / applicable law] on a showing of good cause. A withdrawn trade secret will keep its number and be marked "no longer asserted"; an added trade secret will take the next unused number.

Verification. [Name, title], who has personal knowledge of [Plaintiff]'s [technology / business information], verifies under penalty of perjury that the descriptions above are accurate. [Signature; date.]

Drafting commentary. Courts most often measure an identification by whether it puts the defendant on notice of the nature of the claim and lets it judge the relevance of requested discovery, DeRubeis v. Witten Technologies, Inc., 244 F.R.D. 676 (N.D. Ga. 2007), and that requires specific secrets rather than categories, Knights Armament Co. v. Optical Systems Technology, Inc., 254 F.R.D. 463 (M.D. Fla. 2008). The model omits the things courts have punished. There is no preamble of boilerplate objections and no catchall reservation of a right to amend, both of which drew criticism in Perlan Therapeutics, Inc. v. Superior Court, 178 Cal. App. 4th 1333 (2009). Documents are cited by pinpoint, because incorporating "hundreds of documents" by reference is inadequate, InteliClear, LLC v. ETC Global Holdings, Inc., 978 F.3d 653 (9th Cir. 2020), and a court will not "hunt through the details," IDX Systems Corp. v. Epic Systems Corp., 285 F.3d 581 (7th Cir. 2002). Specifications state the numbers, the lesson of Imax Corp. v. Cinema Technologies, Inc., 152 F.3d 1161 (9th Cir. 1998). Combinations name the elements, how they are combined, and how they operate together, Struthers Scientific & International Corp. v. General Foods Corp., 51 F.R.D. 149 (D. Del. 1970), and negative know-how is identified by the specific failures and the records that show them, Metallurgical Industries Inc. v. Fourtek, Inc., 790 F.2d 1195 (5th Cir. 1986). Do not draft the entries as patent claims under 35 U.S.C. § 112; the Federal Judicial Center's Trade Secret Case Management Judicial Guide § 4.4.6 (2023) warns courts against importing that standard. In California, a designation that credible experts can understand is generally adequate, Advanced Modular Sputtering, Inc. v. Superior Court, 132 Cal. App. 4th 826 (2005), and an explanation of how each secret differs from the prior art is needed only when the description is otherwise inadequate, Brescia v. Angelin, 172 Cal. App. 4th 133 (2009). If the identification is served as an interrogatory answer, it must be answered under oath and signed by the person making it, Fed. R. Civ. P. 33(b). Never file it publicly; a plaintiff that did so undercut its own claim, Loop AI Labs Inc. v. Gatti, 195 F. Supp. 3d 1107 (N.D. Cal. 2016). Further guidance: The Sedona Conference, Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases, 22 Sedona Conf. J. 223 (2021).

Template 2: Secret-by-secret evidence matrix

Purpose: an internal chart that tracks, for each numbered secret, the evidence on every element and the other side's best answer. Owner: the associate or in-house lawyer running the case, updated after each production and deposition. When to use: start it before filing; it later becomes the outline of the summary judgment brief and the verdict form. Label it as prepared at the direction of counsel.

Drafting commentary. The columns track the statutory definition, which requires that the information derive independent economic value from not being generally known or readily ascertainable and that the owner take reasonable measures to keep it secret, 18 U.S.C. § 1839(3), and the definition of misappropriation in § 1839(5). The Restatement factors remain a useful way to organize the proof, Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714 (7th Cir. 2003). The measures column is where cases are lost: an employer that encouraged an employee to keep customer information on personal devices and never asked for it back failed the element, Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279 (11th Cir. 2018), as did a software company that showed its claimed features to licensees without confidentiality obligations, Broker Genius, Inc. v. Zalta, 280 F. Supp. 3d 495 (S.D.N.Y. 2017). The "use" column matters because the owner bears the burden of proving misappropriation even when the defendant offers independent development, Penalty Kick Management Ltd. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003). Mental impressions in the matrix are work product, Hickman v. Taylor, 329 U.S. 495 (1947), but the facts in it are not, so assume every fact will be tested. Defense counsel should keep a mirror-image version with the public-domain and independent-development evidence for each number.

Template 3: Deficiency letter on an identification

Purpose: to tell the owner, entry by entry, what its identification lacks, and to build the record for a motion if it does not cure. Owner: defense counsel, with the defendant's technical lead. When to use: within two to four weeks after the identification is served, or on the schedule in the case management order.

Re: [Case caption]; [Plaintiff]'s Identification of Asserted Trade Secrets served [date]

Dear [Counsel]:

We write under [Local Rule __] and Federal Rule of Civil Procedure 37(a)(1) to meet and confer about [Plaintiff]'s identification. We do not dispute that [Plaintiff] may refine its list later for good cause. Our concern is that several entries do not yet tell [Defendant] what it is accused of taking, which means [Defendant] cannot search its files, its witnesses cannot answer questions about them, and the Court cannot measure the relevance of the technical discovery [Plaintiff] has requested. Meanwhile, [Defendant] will continue producing [departure-related documents, communications, and the materials covered by the forensic protocol].

No.	Problem	What would cure it
1	Describes a result ("reduces boot time by 40 percent"), not the information	The steps, parameters, or code modules claimed, by file path and version
4	Cites [range of thousands of pages] without a pinpoint	The pages, lines, or files that embody No. 4
6	"Including but not limited to"	Delete the phrase or list the specific items
8	Combination without elements or interaction	Each element, how they are combined, and how they operate together
9	Appears to be disclosed in [Plaintiff]'s U.S. Patent No. [__]	What in No. 9 goes beyond the patent

Please serve a supplemental identification curing these points by [date]. If we cannot resolve them, [Defendant] will ask the Court to [order a supplemental identification / enter a protective order deferring discovery into [Defendant]'s [technical materials] until one is served].

Drafting commentary. A motion to compel must certify a good-faith attempt to confer, Fed. R. Civ. P. 37(a)(1), as must a motion for a protective order under Rule 26(c)(1); this letter is that record. Specific objections succeed where global ones fail. Courts outside California increasingly require an identification before the owner may compel the defendant's secrets, Vesta Corp. v. Amdocs Management Ltd., 147 F. Supp. 3d 1147 (D. Or. 2015), but not every court agrees, Nike, Inc. v. Enter Play Sports, Inc., 305 F.R.D. 642 (D. Or. 2015), and in California the designation is liberally construed, with doubts resolved in favor of letting discovery proceed, Brescia, 172 Cal. App. 4th 133. Do not overplay the challenge: repeated rejections of designations that credible experts could understand led to writ relief in Advanced Modular Sputtering, 132 Cal. App. 4th 826. On patents, what a patent discloses is public, but a claim can survive to the extent the asserted secret goes beyond the disclosure, Broker Genius, 280 F. Supp. 3d 495. If you support a later motion with an expert declaration, have the expert address each disputed number, not the list as a whole.

Template 4: Case management provisions and amendment table

Purpose: proposed order language fixing the timing, form, sequencing, challenge procedure, and amendment rules for the identification, plus a running table that records every change. Owner: either side; the party that proposes the first draft frames the negotiation. When to use: with the Rule 26(f) report and proposed scheduling order.

A. Identification. Within [30] days after entry of the Protective Order, Plaintiff shall serve an identification of each trade secret it asserts. The identification shall be a numbered list in which each number describes a single trade secret in narrative form, citing by Bates number and page, or by file path and hash value, the documents that embody it. Documents may supplement but not replace the narrative. The identification shall be designated HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY and shall not be filed except under seal.

B. Sequencing. Before the identification is served, discovery may proceed on [the individual defendant's departure, the examination under the Stipulated Forensic Protocol, communications between the parties, and damages documents that do not disclose technical information]. Discovery into Defendant's [design documents, source code, formulas, and other technical information] shall begin [on service of the identification / [14] days after service].

C. Challenges. Within [21] days after service, Defendant shall identify in writing each entry it contends is insufficient and why. The parties shall confer within [7] days and present any unresolved dispute by joint letter of no more than [5] pages per side. A challenge to some entries does not delay discovery relating to the others.

D. Amendment. Plaintiff may amend the identification with leave of Court for good cause. In assessing good cause the Court will consider Plaintiff's diligence, whether the amendment rests on information first learned in discovery, prejudice to Defendant, and the stage of the case. Plaintiff may withdraw a trade secret at any time without leave. Withdrawn numbers shall not be reused, and added trade secrets shall take the next unused number.

E. Narrowing. No later than [date before opening expert reports], Plaintiff shall elect no more than [] trade secrets to pursue, and no later than [date before the final pretrial conference], no more than [].

F. Effect. The identification, as amended under paragraph D, defines the trade secrets at issue at summary judgment and trial.

Drafting commentary. A scheduling order may modify the extent of discovery and include other appropriate matters, Fed. R. Civ. P. 16(b)(3)(B), and the court may adopt special procedures for complex issues under Rule 16(c)(2)(L); one federal court relied on that authority to require identification before discovery, United Services Automobile Ass'n v. Mitek Systems, Inc., 289 F.R.D. 244 (W.D. Tex. 2013). Paragraph B follows the parallel-track approach favored in the FJC guide, which recommends against a general stay of all discovery. Paragraph D tracks the good-cause factors courts apply, Neothermia Corp. v. Rubicor Medical, Inc., 345 F. Supp. 2d 1042 (N.D. Cal. 2004); a late amendment also has to satisfy Rule 16(b)(4), and a theory never disclosed can be excluded under Rule 37(c)(1) for failure to supplement under Rule 26(e). The numbering rule exists because transcripts, expert reports, and orders will use the original numbers. For a California-law claim, make sure nothing in the order permits discovery "relating to the trade secret" before the § 2019.210 designation, as courts in the state's federal districts often apply or borrow the rule, Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980 (S.D. Cal. 1999). The table lets the owner prove diligence and the defendant prove prejudice from the same page.

Template 5: Two-tier protective order: key provisions

Purpose: the provisions a trade secret case needs beyond a district's standard confidentiality order. Owner: counsel for whichever side drafts first, negotiated by both. When to use: before any identification or confidential document is exchanged; submit as a stipulated order or with a motion under Rule 26(c).

1. Designations. "CONFIDENTIAL": non-public information the Designating Party in good faith believes is protectable under Rule 26(c). "HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY" (AEO): extremely sensitive information whose disclosure to another Party, even under this Order, would create a substantial risk of serious competitive harm that less restrictive means could not avoid, including [formulas and process parameters; source code and technical design documents; current and future pricing, costs, and margins; customer-specific terms; non-public product plans; and any Party's identification of asserted trade secrets]. "RESTRICTED SOURCE CODE": as provided in Section 9.

2. Access to AEO material. Only: (a) outside counsel of record and their staff; (b) [no more than two] Designated House Counsel who do not participate in competitive decision-making, disclosed under Section 4; (c) Experts disclosed under Section 4 who have signed Exhibit A; (d) the Court, its personnel, court reporters, and jurors; (e) litigation vendors who have signed Exhibit A; and (f) any author or recipient of the material.

3. Individual Defendant. [Name] may review AEO material that describes the trade secrets [he / she] is alleged to have misappropriated, and documents [he / she] authored or received while employed by Plaintiff, only at the office of [his / her] outside counsel and in counsel's presence, without making copies, photographs, screenshots, or notes that reproduce the material.

4. Disclosure of Experts and Designated House Counsel. Before disclosing AEO material, the Receiving Party shall provide the person's name, city of residence, current CV, current employer, each person or entity for whom the person has worked in the area of expertise during the past [four] years, and any testimony during that period. The Designating Party may object in writing within [10] days, stating its grounds. If the parties cannot agree, the objecting Party may move within [10] days and bears the burden of showing that the risk of harm outweighs the Receiving Party's need.

5. Prosecution bar. Absent written consent, any individual who reviews another Party's AEO technical material or RESTRICTED SOURCE CODE shall not prepare, prosecute, or supervise the drafting or amendment of patent claims relating to [field] during this action and for [two] years after its final disposition. This bar does not apply to challenging a patent in a post-grant proceeding, other than drafting or amending claims.

6. Notice before disclosure. No Party shall ask the Court to authorize public disclosure of information another Party has designated as its trade secret without [14] days' written notice, so that the Designating Party may file under seal a submission describing its interest in confidentiality.

7. Challenges. A Party may challenge a designation by written notice identifying each document and the basis. After conferring, the Designating Party bears the burden of persuasion and must move within [14] days to retain the designation; the material keeps its designation until the Court rules.

8. Filing under seal. Designation under this Order does not by itself justify sealing. A Party filing designated material shall comply with [Civil L.R. __], and the Designating Party shall support sealing with a declaration addressing each document.

9. Source code. [Insert the protocol in Template 6.]

10. Rule 502(d). The production of privileged or work-product-protected material, whether inadvertent or otherwise, is not a waiver in this case or in any other federal or state proceeding. On notice, the Receiving Party shall return, sequester, or destroy the material as provided in Rule 26(b)(5)(B). This paragraph is an order under Federal Rule of Evidence 502(d).

11. Nonparties. A nonparty producing information in this action may designate it under this Order and has the rights of a Designating Party.

12. Final disposition. Within [60] days after final disposition, each Receiving Party shall return or destroy designated material and certify that it has done so. Outside counsel may keep one archival set of pleadings, transcripts, expert reports, and work product, which remain subject to this Order. The Court retains jurisdiction to enforce this Order.

Drafting commentary. Rule 26(c)(1)(G) authorizes orders that a trade secret "not be revealed or be revealed only in a specified way," Fed. R. Civ. P. 26(c); orders limited to discovered material do not offend the First Amendment, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984); and a stipulated umbrella order still requires a particularized showing when a document is challenged, Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 1122 (9th Cir. 2003); Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). Courts approve the AEO tier on a showing of competitive harm, Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240 (D. Kan. 2010); MGP Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497 (D. Kan. 2007). Section 2(b) turns on "competitive decisionmaking," judged by the lawyer's actual role, U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984); Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992); delete it if your client has no lawyer who qualifies. Section 3 reflects the common compromise for accused employees described in the FJC guide § 6.5.7. Section 4 leaves room for the split over experts who consult for competitors; compare Layne Christensen with Streck, Inc. v. Research & Diagnostic Systems, Inc., 250 F.R.D. 426 (D. Neb. 2008). The party seeking a prosecution bar must show that its scope, duration, and subject matter reasonably reflect the risk, and exemptions are decided counsel by counsel, In re Deutsche Bank Trust Co. Americas, 605 F.3d 1373 (Fed. Cir. 2010). Section 6 implements 18 U.S.C. § 1835(b), which bars a court from authorizing disclosure of an asserted trade secret without letting the owner file such a submission. Section 8 exists because the parties cannot stipulate their way into sealing, Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996); Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002). Section 10 gives the non-waiver protection of Fed. R. Evid. 502(d), which matters when forensic images sweep in communications with counsel. Violations are enforced through contempt and sanctions; see the Order Enforcement Toolkit: Show Cause Motions, Contempt Briefing, and Sanctions.

Template 6: Source code review protocol

Purpose: to make source code available for inspection without letting it leave the room. Owner: counsel for the producing party, negotiated with the reviewing side's technical expert. When to use: as Section 9 of the protective order, before any code is produced; it serves owners and defendants alike, because both usually produce code.

9. RESTRICTED SOURCE CODE.

(a) Review computer. The Producing Party shall make source code available on a standalone computer with no network or internet connection and with external ports disabled, at [the office of its outside counsel / a secure facility in [city]], during business hours on [three] business days' notice. At the Receiving Party's request and expense, the Producing Party shall install [listed review and search tools] that do not permit copying or transmission.

(b) Reviewers and log. Only outside counsel and Experts approved for RESTRICTED SOURCE CODE under Section 4 may review. Each reviewer shall sign a log stating name, date, and times in and out. The Producing Party may visually monitor the room but may not listen to the reviewers' discussions or examine their notes.

(c) Devices and notes. No cameras, phones, recording devices, or storage media may enter the review room. [Reviewers may use a non-networked laptop for notes, which may not reproduce code beyond file names, function names, and line numbers.]

(d) Printouts. The Receiving Party may request printouts of portions reasonably necessary for a filing, expert report, or deposition, up to [] consecutive pages and [] pages in total absent agreement or order. The Producing Party shall Bates-label printouts on watermarked paper and deliver them within [three] business days. Printouts are RESTRICTED SOURCE CODE and shall be kept in a locked container when not in use.

(e) Depositions and filings. Printouts may be used at depositions and attached to filings and expert reports only to the extent necessary, and any filing containing code shall be made under seal. No electronic copy of code shall be made except as needed for sealed filings and service.

(f) Return. At the end of the case, printouts and notes containing code shall be returned or destroyed, with certification.

Drafting commentary. Production "for inspection" rests on Rule 34(a)(1)(A), which allows a party to inspect and test electronically stored information, Fed. R. Civ. P. 34, and on the court's power to order that a trade secret be revealed only in a specified way. The fights are usually about scope rather than mechanics. Tie the code to be produced to the numbered secrets (by product, function, time period, and author), because courts weigh the need for code against the producer's interest and are wary of requests that look like a search for new, unlitigated claims; the FJC guide § 6.7.2 collects examples and appends the District of Delaware's default standard for access to source code. Set the printing limits high enough to be workable and include a procedure for exceeding them, or expect a motion. Anyone who reviews code may also fall within the prosecution bar in Section 5, so choose reviewers with the bar in mind, In re Deutsche Bank Trust Co. Americas, 605 F.3d 1373 (Fed. Cir. 2010). An expert's own review notes are generally discoverable even though drafts of the report are not; see the Expert Deposition Toolkit: Outline Frameworks, Reliance Material Requests, and Rule 26 Protection Maps.

Template 7: Preservation demand letter

Purpose: to put the departing employee and, where warranted, the new employer on notice of specific evidence, to fix the date their preservation duty attached, and to propose a neutral process before anyone touches the devices. Owner: the owner's outside counsel. When to use: within days after the owner learns of the suspected taking, and before any motion.

[Date]

By email and overnight courier

[Former employee] / [General Counsel, New Employer]

Re: Preservation of evidence concerning [Company]'s confidential information

[Company] has information indicating that on or about [date], [Name] [copied approximately [number] files from [Company]'s systems to a USB storage device bearing serial number [__] / forwarded [Company] files to the personal email account [address] / synchronized [Company] files to a personal cloud account]. [Company] anticipates litigation about these events. Please preserve, and suspend any deletion of, the following in their current state:

1. The device identified above and any other storage device that [Name] connected to [Company]'s systems between [dates].
2. Every computer, phone, tablet, and external drive [Name] has used since [date], including personal devices.
3. The following accounts, including deleted-items folders, version histories, and synchronization logs: [personal email], [cloud storage], [messaging applications].
4. At [New Employer]: [Name]'s company-issued devices, email account, and file shares, and any system to which [Name] has uploaded or transferred files since [start date].

Please do not open, copy, move, or delete files on these devices or accounts; run cleanup, optimization, or wiping tools; reset any device to factory settings; or "return" files by deleting them. Each of those steps alters or destroys evidence. If you believe [Company] files are in your possession, tell us, and we will propose a procedure under which a neutral examiner identifies and removes them while protecting personal information.

[Company] proposes a stipulated order under which a neutral forensic examiner images the devices and accounts listed above within [__] days, at [Company]'s initial expense, under the enclosed protocol. Please respond by [date]. This letter does not waive any of [Company]'s rights or remedies.

Drafting commentary. A party must preserve relevant evidence once litigation is reasonably anticipated, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003); Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011), and for the recipient the duty attaches at the latest when the claim is asserted, Cohn v. Guaranteed Rate, Inc., 318 F.R.D. 350 (N.D. Ill. 2016). The letter will become an exhibit to a sanctions motion under Fed. R. Civ. P. 37(e) if anything disappears, so make it specific and calm. The warning against "returning" files by deleting them is there because that is what anxious employees do, and courts treat it as spoliation; defendants who wiped or discarded devices suffered defaults in Organik Kimya, San. ve Tic. A.S. v. International Trade Commission, 848 F.3d 994 (Fed. Cir. 2017) and OmniGen Research v. Wang, 321 F.R.D. 367 (D. Or. 2017). Offering a neutral protocol now pays off later: courts are reluctant to order immediate imaging of personal devices without notice, Henry Schein, Inc. v. Cook, 191 F. Supp. 3d 1072 (N.D. Cal. 2016), and a reasonable written offer makes an order more likely when it is refused. Do not threaten criminal referral to gain leverage; several states' ethics rules forbid threatening criminal charges to obtain an advantage in a civil dispute. For the owner's internal hold, use the Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.

Template 8: Stipulated neutral forensic examination protocol

Purpose: to let a neutral examiner find the owner's files on the other side's devices and accounts, and to report what happened to them, without giving the owner access to the employee's personal life or the new employer's unrelated data. Owner: both sides; usually drafted by the owner and negotiated with the employee's and new employer's counsel. When to use: in the first weeks of the dispute, as a stipulation, as part of a temporary restraining order, or in response to a Rule 34 request for inspection.

1. Appointment. The Parties jointly retain [Examiner] as a neutral forensic examiner. The Examiner is not an agent of any Party, will not be designated as any Party's testifying expert, has disclosed all prior engagements by the Parties and their counsel, and is bound by the Protective Order as an Expert with access to AEO material. [Alternative: the Court appoints the Examiner as a special master under Rule 53 for the purposes stated in this Protocol.]

2. Communications. Communications with the Examiner shall be in writing and copied to counsel for all Parties, except communications with the Producing Party's counsel about the privilege and privacy review in paragraph 6.

3. Devices and accounts. Schedule A lists each device and account to be examined, with custodian, make, model, serial number or account identifier. The Producing Party shall deliver the devices, and credentials or written consents for the accounts, by [date].

4. Collection. The Examiner shall create a forensic image of each device and a forensic collection of each account, verify each by hash value, document chain of custody, and return each original device within [five] business days, except [the USB device], which the Examiner shall retain.

5. Examination. For the period [date] to [date], the Examiner shall (a) identify files matching the hash values in Schedule B (the owner's files); (b) run the search terms in Schedule C; and (c) prepare an artifact report addressing external-device connections, file access, copying, and deletion involving Schedule B files or search hits, cloud synchronization and uploads, email forwarding, and the use of deletion, wiping, or anti-forensic tools.

6. Privilege and privacy review. The Examiner shall first provide all hash matches, search hits, and the artifact report to the Producing Party's counsel, who shall have [ten] days to withhold or redact privileged material and personal information unrelated to the dispute and to serve a log of anything withheld or redacted. Files matching Schedule B and the artifact report may not be withheld as personal information.

7. Disclosure. After the review period, the Examiner shall provide the materials not withheld to counsel for all Parties, designated AEO. No Party other than the Producing Party shall receive a complete image.

8. Remediation. At [the conclusion of the case / a date set by the Court], after preserving forensic copies for the litigation, the Examiner shall remove Schedule B files and their copies from the devices and accounts and certify the removal.

9. Costs. [Requesting Party] shall advance the Examiner's fees, without prejudice to reallocation by the Court in light of the results and the Parties' conduct.

10. Testimony and privilege. The Examiner may be deposed and may testify about methods and results. Providing material to the Examiner does not waive any privilege or protection, and Section 10 of the Protective Order applies.

11. Retention. The Examiner shall keep the images until [60] days after final disposition, then destroy them and certify destruction.

12. Disputes. Disputes about this Protocol shall be presented to [Magistrate Judge __] by joint letter.

Drafting commentary. Rule 34(a)(1)(A) permits inspection and testing of electronically stored information, but the 2006 advisory committee note disclaims any routine right of direct access to an opponent's systems, and appellate courts have enforced that limit, In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003); John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008). Courts that order examinations want evidence that the device was used to take or move the information, and they protect privacy by sending results to the producing party's counsel first, the three-step approach of Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), adopted in Genworth Financial Wealth Management, Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010); see also Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999); Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). A forensic image is a bit-for-bit copy verified by hash value, A.M. Castle & Co. v. Byrne, 123 F. Supp. 3d 895 (S.D. Tex. 2015). Paragraph 9 preserves the court's power to shift costs to the party whose conduct made the examination necessary, as in Genworth (80 percent to the defendants) and Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5 (D.D.C. 2009). If the court appoints the examiner as a special master, the order must state the master's duties, the limits on ex parte communications, the record to be kept, the standard of review, and compensation, Fed. R. Civ. P. 53(b)(2). For devices or data located abroad, add a schedule addressing foreign data-protection law and expect the court to weigh comity, Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522 (1987); one court refused to order examination of computers in China during limited early discovery, Motorola Solutions, Inc. v. Hytera Communications Corp., 314 F. Supp. 3d 931 (N.D. Ill. 2018). Ask the examiner for a certification that will let hash-verified copies be authenticated under Fed. R. Evid. 902(14). The FJC guide § 5.3.3 lists the points a court will expect such an order to cover. Negotiate this protocol together with the ESI protocol; see Negotiating an ESI Protocol and Managing E-Discovery Costs.

Template 9: Artifact chart and chain-of-custody log

Purpose: two running records that turn forensic work into admissible evidence: where each device and image has been, and what the artifacts show. Owner: the forensic examiner (party-retained or neutral), reviewed by counsel. When to use: from the moment the first device is collected.

Chain-of-custody log

Artifact summary chart

Drafting commentary. Record every time in Coordinated Universal Time and state the device's own clock offset; a timeline that mixes zones invites a cross-examination about which "Friday" anyone means. Forensic evidence is authenticated by showing that the process or system produces an accurate result, Fed. R. Evid. 901(b)(9), and since 2017 data copied from a device and verified by hash can be self-authenticating with a qualified person's certification and advance notice, Fed. R. Evid. 902(14). System logs kept in the ordinary course may also qualify as business records, Fed. R. Evid. 803(6). The artifact chart itself is a summary under Fed. R. Evid. 1006, so the underlying data must be made available to the other side, and the examiner who prepared it must meet Fed. R. Evid. 702. A gap in the custody log is the first thing opposing counsel will look for.

Template 10: Requests for personal email and cloud data

Purpose: to reach the employee's personal accounts by the routes the Stored Communications Act allows. Owner: the owner's counsel. When to use: as soon as the forensic evidence shows files moving to a personal account; serve the request on the party, not the provider.

Request for production No. [__] (to [Individual Defendant]). All documents and communications in any email, cloud storage, messaging, or social media account you have used since [date], including [list of accounts], that (i) match a hash value listed in Schedule B; (ii) were sent to, received from, or concern [Company] and are dated after [date]; or (iii) were uploaded to or synchronized with the account from any device you connected to [Company]'s systems.

Consent (to be executed by the account holder). I, [Name], consent under 18 U.S.C. § 2702(b)(3) to [Provider]'s disclosure to [Examiner] of the contents of account [identifier] for the period [date] to [date], for use solely under the Stipulated Forensic Protocol entered on [date].

Subpoena rider (to [Provider]). This subpoena seeks only subscriber information, account creation and recovery information, log-in records with dates, times, and IP addresses, and device identifiers for account [identifier] from [date] to [date]. It does not seek the contents of any communication or file.

Drafting commentary. The Stored Communications Act generally prohibits providers from divulging the contents of communications, 18 U.S.C. § 2702, and a civil subpoena is not one of the exceptions, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010); an overbroad subpoena for contents can even expose the issuing party to liability, Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004). Two routes remain. The account holder controls the account and can be required to produce from it, or to consent to the provider's disclosure under § 2702(b)(3), Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008). And providers may disclose non-content records to persons other than a governmental entity, § 2702(c)(6), so a subpoena limited to such records can succeed; one court quashed a subpoena to a wireless carrier as to text message contents and enforced it for the rest, Mintz v. Mark Bartelstein & Associates, Inc., 885 F. Supp. 2d 987 (C.D. Cal. 2012). "Contents" means the substance, purport, or meaning of a communication, 18 U.S.C. § 2510(8), so file names and subject lines are risky to request from a provider. A subpoenaed provider or other nonparty may also seek protection for its own confidential information under Fed. R. Civ. P. 45(d)(3)(B)(i). For platform subpoenas and motions to quash, see the John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash and the Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege.

Template 11: Rule 30(b)(6) topic lists

Purpose: corporate deposition topics organized around the numbered secrets. Owner: the deposing side's lead associate. When to use: after the identification and the core document productions, and before expert reports.

Topics for the trade secret owner (served by the accused). (1) The development of each trade secret in [Plaintiff]'s identification, including dates, persons involved, and documents reflecting it. (2) The measures [Plaintiff] took to keep each trade secret confidential, including agreements, access controls, markings, and training. (3) Any disclosure of the information described in each trade secret outside [Plaintiff], including patents, publications, presentations, customers, suppliers, and licensees. (4) The non-privileged facts of [Plaintiff]'s investigation of [Name]'s departure. (5) Prior assertions of the same trade secrets against anyone else. (6) [Damages topics keyed to each secret.]

Topics for the accused company (served by the owner). (1) The design and development history of [accused product or process], including dates, persons, sources consulted, and version-control records. (2) [Defendant]'s recruitment and onboarding of [Name], including instructions about prior employers' information and any certifications obtained. (3) Searches [Defendant] performed for [Plaintiff]'s information and their results. (4) The devices, accounts, and systems [Name] has used since [date] and how they were preserved. (5) Any clean-room, quarantine, or screening procedures. (6) Sales, costs, and profits of [accused product].

Drafting commentary. Topics must be described with reasonable particularity, and the parties must confer in good faith about them before or promptly after service, Fed. R. Civ. P. 30(b)(6). Keep "why do you contend" questions out of the notice; the FJC guide recommends contention interrogatories under Rule 33 instead, and courts often reshape 30(b)(6) notices that ask a witness to argue the case. Topic (4) for the owner is drafted to avoid a privilege fight: communications made to secure legal advice are protected, Upjohn Co. v. United States, 449 U.S. 383 (1981), but the facts are not, and a forensic report commissioned in connection with an acquisition was ordered produced in Waymo LLC v. Uber Technologies, Inc., 870 F.3d 1350 (Fed. Cir. 2017). If the individual employee may invoke the Fifth Amendment, plan for it: an adverse inference is permitted in civil cases, Baxter v. Palmigiano, 425 U.S. 308 (1976), and a stay pending a parallel criminal matter is decided case by case, Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995). For preparation and defense, see Preparing and Defending a Rule 30(b)(6) Deposition.

Template 12: Trial confidentiality plan and verdict form

Purpose: a plan for trying the case without publishing the secrets, and a verdict form that keeps the jury's findings tied to the numbers. Owner: trial counsel for both sides, jointly where possible. When to use: submit with the pretrial order, well before the final pretrial conference.

Confidentiality plan. (1) Each asserted trade secret will be referred to in open court as "Trade Secret No. []"; jurors will receive a sealed key, collected each day. (2) Sealed exhibits will be displayed only on the juror, witness, bench, and counsel monitors. (3) By [date], each party will identify testimony that cannot be given using code names; that testimony will be grouped so that, on the Court's findings, the courtroom is closed no more than once per witness. (4) Within [] days after receiving each daily transcript, the parties will designate portions to be sealed and then file public redacted versions. (5) Jurors and court personnel will be reminded of their confidentiality obligations. (6) Sealed exhibits will remain sealed after trial absent further order.

Verdict form (repeat for each trade secret). Trade Secret No. []. (a) Did [Plaintiff] prove by a preponderance of the evidence that Trade Secret No. [] was a trade secret? Yes / No. (b) If yes, did [Plaintiff] prove that [Defendant] misappropriated it? Yes / No. (c) If yes, was the misappropriation willful and malicious? Yes / No. [(d) If foreign conduct is at issue: did [Plaintiff] prove that an act in furtherance of the misappropriation was committed in the United States? Yes / No.] (e) State the damages caused by the misappropriation of Trade Secret No. []: actual loss $[]; unjust enrichment not taken into account in computing actual loss $[]; or, in lieu of those measures, a reasonable royalty $[].

Drafting commentary. A secret-by-secret form uses the special verdict or written questions authorized by Fed. R. Civ. P. 49, and the instructions should be proposed early and tailored to the elements actually in dispute, Fed. R. Civ. P. 51; the FJC guide § 10.7 cautions against instructing jurors to weigh the six Restatement factors as if each were an element. Question (e) tracks the DTSA's damages measures, and question (c) supports exemplary damages of up to twice the award, 18 U.S.C. § 1836(b)(3). Question (d) reflects 18 U.S.C. § 1837: the Seventh Circuit applied that section to the civil action and affirmed a DTSA award reaching the defendant's sales abroad, relying on the defendant's acts in the United States, including marketing at U.S. trade shows, in Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024). Sealing trial material requires compelling reasons in the Ninth Circuit, Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and faces a strong presumption of access elsewhere, Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), but genuine trade secrets usually qualify, Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011). Federal employees, including court staff, may not disclose confidential information they learn on the job, 18 U.S.C. § 1905. Any injunction that follows must identify the information it protects, Mallet & Co. v. Lacayo, 16 F.4th 364 (3d Cir. 2021), and a sealed attachment to the order lets it do so without publishing the secrets. For damages models and injunction briefing, use the Trade Secret Remedies Toolkit: Damages Models, Head Start Analyses, and Injunction Briefing; for playing deposition testimony at trial, the Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• Identifying Trade Secrets in Litigation: Reasonable Particularity, Sequencing Discovery, and Protecting the Secret While You Sue: the doctrine behind each template.
• Trade Secret Damages and Remedies: Unjust Enrichment, Reasonable Royalties, Injunctions, and Exemplary Awards: what the verdict form's damages questions are measuring.
• Protective Orders, Confidentiality Designations, and Sealing: Secrecy and Its Limits in Federal Court: the law behind Templates 5, 6, and 12.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: the duties behind Templates 7 and 8.
• Expert Depositions: Taking Apart the Opinion, Protecting Your Own Expert, and Building the Daubert Record: examining the forensic and technical experts.

Related Guides

• Managing Discovery in a Trade Secret Case: A Practical Guide: when to use each template, step by step.
• Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act: A Practical Guide: the full life cycle of a DTSA case.
• Negotiating a Protective Order and Filing Under Seal: A Practical Guide: negotiating Template 5.
• Negotiating an ESI Protocol and Managing E-Discovery Costs: the companion to Template 8.

Related Checklists

• Trade Secret Identification and Discovery Checklist: A Practical Checklist: every task these templates support, in order.
• Employee Departure Trade Secret Protection Checklist: A Practical Checklist: the offboarding steps that generate the evidence.
• Protective Order and Sealing Checklist: A Practical Checklist: negotiating and using the order.

Related Toolkits

• Trade Secret Remedies Toolkit: Damages Models, Head Start Analyses, and Injunction Briefing: templates for the remedies phase.
• Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions: designation challenges and sealing motions.
• Expert Deposition Toolkit: Outline Frameworks, Reliance Material Requests, and Rule 26 Protection Maps: expert discovery templates.
• Trade Secret Protection Toolkit: Building and Defending a Confidentiality Program: the reasonable-measures record behind Template 2.
• Deposition Practice Toolkit: Taking, Defending, and Using Depositions in Federal Litigation: deposition templates for Template 11.