Trade Secret Remedies Toolkit: Damages Models, Head Start Analyses, and Injunction Briefing

Summary. This toolkit collects the working documents of a trade secret remedies case, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing statutes and decisions. It begins with an early remedies assessment memo, a Rule 26 damages computation, and core damages discovery requests for both sides. The modeling templates cover actual loss, the defendant's profits with apportionment, avoided development costs worked through for a software company, reasonable royalties, a head start analysis worked through for a two-year head start on a manufacturing process, and a matrix that keeps every dollar in one bucket. The injunction templates include outlines for moving and opposing briefs, a bond worksheet, and model clauses for a proposed order that respects the DTSA's employment proviso. Later templates address the damages expert report and Rule 702 motions, a willful and malicious evidence log, a verdict form skeleton, fee motions, a post-trial deadline calendar, and settlement remedy terms. It closes with common drafting mistakes, an FAQ, and practical takeaways.

The expensive mistakes in trade secret remedies are rarely legal mysteries. They are spreadsheets that add the same dollar twice, head start estimates nobody wrote down, proposed orders that would keep an engineer from working anywhere, and verdict forms with one blank for six secrets. Each of those failures has a form that prevents it. This toolkit is that set of forms, annotated so either side can use them.

The short answer

Remedies under 18 U.S.C. § 1836(b)(3) and the state trade secret acts reward the party whose numbers are disciplined and whose requested orders are narrow. The templates below enforce four disciplines that courts keep insisting on:

1. Time: every measure, and every injunction, is bounded by the head start, the lead time the defendant gained over what lawful development would have allowed (Templates 4 through 8 and 13).
2. Attribution: every dollar is tied to identified secrets and apportioned away from the defendant's own contributions (Templates 5, 6, and 15).
3. Single recovery: actual loss, unjust enrichment, royalties, and injunctive relief never cover the same harm twice (Template 9).
4. Restraint: injunctions are specific, time-limited, and do not stop anyone from taking a job (Templates 11 through 13).

The analysis behind each template is in Trade Secret Damages and Remedies: Unjust Enrichment, Reasonable Royalties, Injunctions, and Exemplary Awards; the sequence for using them is in Proving or Defending Against Trade Secret Damages: A Practical Guide; and the task-by-task audit is in Trade Secret Damages and Remedies Checklist: A Practical Checklist.

How to use this toolkit

Bracketed text marks fill-ins. Adapt every template to the governing state statute, local rules, and the judge's standing orders.

Template 1: Early remedies assessment memo

Purpose: force an early, written decision about what the case is for and what it is worth. Owner: lead counsel for either side. When: within 30 days of intake, updated after the preliminary injunction ruling and after expert reports.

PRIVILEGED AND CONFIDENTIAL: ATTORNEY WORK PRODUCT
TO: [Client decision-maker]   FROM: [Counsel]   DATE: [ ]

1. Client goals, ranked: [stop use / money / customer protection / deterrence]
   [Accused: stay in market / keep hire / cap exposure / confidentiality]
2. Claims and governing law: DTSA; [State] UTSA [cite]; contract claims [list];
   other claims surviving preemption [list]; limitations dates [ ]
3. State-law differences that matter: royalty availability; exemplary cap and
   standard; fee rule; prejudgment interest rule; burden on apportionment
4. Secrets at issue (by identification number) and evidence of taking and use
5. Remedies map, per secret:
   - Injunction: irreparable-harm evidence [ ]; head start estimate [ ] months
   - Actual loss: [lost profits / price erosion / destroyed value] $[low]-$[high]
   - Unjust enrichment: [profits / avoided costs] $[low]-$[high]
   - Royalty (in lieu): $[low]-$[high]
   - Exemplary (up to 2x): evidence [ ]; whistleblower notice status [ ]
   - Fees: [willful and malicious / bad-faith exposure for owner]
6. Collectability and insurance: [assets, policies, tender status]
7. Budget through preliminary injunction, expert phase, and trial: $[ ]
8. Risk-adjusted value: [probability of liability] x [likely award] = $[ ]
9. Recommendation and decision points: [PI or not; early mediation date]

Drafting notes. Section 3 is where cases are quietly won: California makes a royalty available only if neither actual loss nor unjust enrichment is provable and then leaves it to the court's discretion, Ajaxo, Inc. v. E*Trade Financial Corp., 48 Cal. App. 5th 129 (2020); Virginia keeps the entire burden of proving unjust enrichment on the plaintiff, Appian Corp. v. Pegasystems Inc., Record No. 240736 (Va. Jan. 8, 2026); New York common law forbids avoided-cost damages, E.J. Brooks Co. v. Cambridge Security Seals, 31 N.Y.3d 441 (2018). In section 5, record the whistleblower notice status for every individual defendant: an employer that did not give the notice required by 18 U.S.C. § 1833(b)(3) cannot recover DTSA exemplary damages or fees against that person. An accused party's memo should run the same numbers from the other direction, including the bad-faith fee claim it may hold if the owner's case collapses.

Template 2: Rule 26 damages computation

Purpose: satisfy the duty to disclose "a computation of each category of damages claimed" and the supporting documents, Fed. R. Civ. P. 26(a)(1)(A)(iii), without locking the owner into a premature number. Owner: owner's counsel, with the damages consultant. When: initial disclosures, then each supplement under Rule 26(e).

COMPUTATION OF DAMAGES [Rule 26(a)(1)(A)(iii)] (preliminary; discovery ongoing)

Category 1. Actual loss: lost profits on diverted sales
  Method: diverted units x incremental margin, by secret, by month
  Period: [start of use] to [end of head start or trial]
  Preliminary amount: $[ ] based on [documents, Bates ranges]
Category 2. Actual loss: price erosion and increased costs
  Method: price reduction x affected volume, net of volume effects
Category 3. Unjust enrichment not counted in Categories 1-2
  (a) Defendant's profits on sales not claimed in Category 1 (data in
      Defendant's possession; computation to follow its production)
  (b) Avoided development costs: Plaintiff's allocated development cost,
      adjusted to Defendant's circumstances: $[ ] (preliminary)
Category 4. Reasonable royalty, in the alternative and in lieu of 1-3
Category 5. Exemplary damages up to 2x Categories 1-4 [DTSA § 1836(b)(3)(C)]
Category 6. Attorney's fees, costs, prejudgment and post-judgment interest
Documents: [list or Bates ranges]; to be supplemented under Rule 26(e)

Drafting notes. Name every category now, even if the number must wait for the other side's data, and say why it must wait. Courts preclude categories that were never disclosed: Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006), affirmed exclusion of lost profits omitted from initial disclosures, and Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175 (9th Cir. 2008), affirmed exclusion of undisclosed damage calculations under Fed. R. Civ. P. 37(c)(1). Keep Category 3(a) and Category 1 visibly separate from the start; the DTSA allows unjust enrichment only to the extent it is "not addressed in computing damages for actual loss." The accused party should calendar a deficiency letter for any category that is named but never computed.

Template 3: Core damages discovery requests

Purpose: get the data each side's expert needs in a form the expert can use. Owner: both sides. When: first wave of written discovery, after a two-tier protective order is entered.

Owner's requests to the accused party (adapt definitions and numbering to the case):

1. Documents sufficient to show, by month, product, and customer, units sold, gross revenue, discounts, returns, cost of goods sold, and incremental costs for each Accused Product, produced natively with field definitions. Fed. R. Civ. P. 34(b)(1)(C).
2. Documents sufficient to show revenue and costs for all of your products and services, by product line, for the same period.
3. Project plans, budgets, headcount, time records, and version-control histories for the development of each Accused Product.
4. All documents referring to Plaintiff, its products, or its personnel in connection with the design, development, pricing, or marketing of any Accused Product.
5. Business plans, forecasts, board materials, and investor presentations concerning any Accused Product.
6. Bids, proposals, and win-loss analyses for each customer Plaintiff identifies in its response to Interrogatory [ ].

Accused party's requests to the owner:

1. Documents sufficient to show research and development spending, by project and year, for each asserted trade secret, with engineering time records allocating personnel to each.
2. All licenses, license offers, term sheets, and valuations (financing, acquisition accounting, impairment, tax) involving any asserted trade secret.
3. Documents showing Plaintiff's production capacity, incremental margins, and sales to each customer Plaintiff claims to have lost.
4. Documents showing the dates each asserted trade secret was conceived, reduced to practice, and first used commercially.

Rule 30(b)(6) topics for both sides: the structure of the financial and cost systems; how the produced data was extracted; accounting policies for allocating overhead; and product-line reporting. Fed. R. Civ. P. 30(b)(6).

Drafting notes. Request 2 in the owner's set exists because of Appian. There, an interrogatory asked for revenue by version of the accused software; the defendant objected and produced its public financial statements, and its expert later broke out revenue by product line. The trial court treated the interrogatory answer as a waiver and barred the defendant's evidence that much of its revenue came from other products. The Supreme Court of Virginia held that ruling an abuse of discretion, noting that the plaintiff never moved to compel. A request that covers all products, with an answer the parties fight about early, is the cure for both sides. Use contention interrogatories under Fed. R. Civ. P. 33(a)(2) to pin down the owner's measures per secret, and protect everything with the forms in Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols.

Template 4: Actual loss worksheet

Purpose: compute the owner's own injury month by month so the period can be cut at the end of the head start. Owner: owner's damages expert; the accused party's expert uses the same lines to rebut. When: expert phase, with a preliminary version for the preliminary injunction hearing. The figures below are the per-month numbers for the manufacturing example in Template 8.

Drafting notes. Patent law's lost-profits elements (demand, absence of acceptable noninfringing substitutes, capacity, and amount) from Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978), discipline lines B and C, and patent law also recognizes price erosion and increased costs, Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056 (Fed. Cir. 1983). An alternative the defendant could have used lawfully cuts the capture rate, the logic of Grain Processing Corp. v. American Maize-Products Co., 185 F.3d 1341 (Fed. Cir. 1999). Line I stops at the end of the head start: in Sokol Crystal Products, Inc. v. DSC Communications Corp., 15 F.3d 1427 (7th Cir. 1994), the Seventh Circuit explained that losses after the defendant "would have discovered" the secret lawfully are not caused by the misappropriation. Line H applies when disclosure destroyed the secret; Precision Plating & Metal Finishing, Inc. v. Martin-Marietta Corp., 435 F.2d 1262 (5th Cir. 1970), measured that loss by investment value. A before-and-after valuation of the owner's business is an alternative method, affirmed in Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867 (5th Cir. 2013). The accused party's rebuttal usually lives in line B: other suppliers, customers who would not have bought at all, and capacity the owner did not have.

Template 5: Defendant's profits and apportionment worksheet

Purpose: compute unjust enrichment from the defendant's sales, with every deduction and its burden visible. Owner: both experts; counsel fills in the burden column from the forum's law. When: expert phase, and again when drafting instructions.

Drafting notes. The forum's burden rule decides who loses when line 8 is uncertain. Restatement (Third) of Unfair Competition § 45 cmt. f puts deductions on the defendant, and Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024), let the plaintiff prove total profits and the defendant prove its own contributions; the Supreme Court of Virginia in Appian held the Virginia statute shifts no burden at all. Owners will invoke the old rule that the wrongdoer bears the risk of the uncertainty it created, Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251 (1946), and the commingling principle of Westinghouse Electric & Manufacturing Co. v. Wagner Electric & Manufacturing Co., 225 U.S. 604 (1912); accused parties will invoke the insistence on net profits in Liu v. SEC, 591 U.S. 71 (2020). Line 6 mirrors copyright practice, where an infringer may deduct expenses attributable to the infringing product, 17 U.S.C. § 504(b). Line 9 applies the head start to money, as Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., 895 F.3d 1304 (Fed. Cir. 2018) (TAOS), required when it vacated a disgorgement award built mostly on later sales. Two cautions for the accused party: a claim that it could have earned the same profit without the secret is speculation if it never tried, C&F Packing Co. v. IBP, Inc., 224 F.3d 1296 (Fed. Cir. 2000), and juries often land between the experts (the jury in Russo v. Ballard Medical Products, 550 F.3d 1004 (10th Cir. 2008), awarded about 53 percent of the plaintiff's profits figure). Two cautions for the owner: run this worksheet for each secret, because a lump sum can fail entirely when only some secrets are found, O2 Micro International Ltd. v. Monolithic Power Systems, Inc., 399 F. Supp. 2d 1064 (N.D. Cal. 2005); and do not ask a court to impose a constructive trust over value the defendant created itself, Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010).

Template 6: Avoided development cost model (worked example: a software company)

Purpose: measure what the defendant saved by taking a shortcut, for cases where its profits are small or not yet earned. Owner: both experts, with a technical witness for the allocation. When: expert phase; a first cut belongs in the Template 1 memo.

The facts. Larkspur Health Systems spent four years (2019 to 2022) building a claims-adjudication rules engine with seven modules. In January 2024 two Larkspur architects joined Quillfeather Software, bringing design documents and test suites for three of the modules. Quillfeather shipped a competing engine in September 2024, eight months later, and has since won two Larkspur customers. Larkspur's lost profits on those two customers through trial are $2.2 million.

The accused party's alternative. Quillfeather's expert builds an independent-development plan: 14 engineers for 18 months at a fully loaded $15,000 per engineer-month ($3,780,000), plus $600,000 for tooling and testing, for $4,380,000. The trial will be fought in the $4.2 million gap between the two numbers, mostly over line B (were the modules really 55 percent of the work?) and the plan's realism (could 14 engineers have done in 18 months what took Larkspur four years?). Quillfeather will also stress that development cost is not automatically the value of what was taken; in a criminal case the Seventh Circuit vacated a $12 million loss figure that simply adopted the victims' development costs. United States v. Pu, 814 F.3d 818 (7th Cir. 2016).

Choosing the path. Under Motorola, the owner may pursue the larger of two non-overlapping paths. Path one is Quillfeather's total profits on the engine, which are only about $3.1 million so far. Path two is Larkspur's actual loss plus unjust enrichment not counted in it: $2.2 million in lost profits plus $8.6 million in avoided costs, or $10.8 million. Path two governs, but only if the circuit allows avoided costs on these facts.

Drafting notes. In the Second Circuit, Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Group, Inc., 68 F.4th 792 (2d Cir. 2023), rejected avoided costs where the owner kept the secret's full value, an injunction ended the use, and the defendant had not built a competing product; Larkspur's best fact is the competing engine: the Second Circuit distinguished cases in which the defendant used the secrets to develop its own product and so diminished their value to the owner, and the two lost customers are Larkspur's evidence of that diminished value. In the Seventh and Third Circuits the measure is more readily available, Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (7th Cir. 2020) (the jury applied the defense expert's own 30 percent labor discount); PPG Industries, Inc. v. Jiangsu Tie Mao Glass Co., 47 F.4th 156 (3d Cir. 2022). The owner's cost can be a "proxy" for the defendant's savings, and a defendant's failure to profit is no defense, GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016). A software case can also support a royalty measured by research resources the defendant saved by reconstructing protected code, Mid-Michigan Computer Systems, Inc. v. Marc Glassman, Inc., 416 F.3d 505 (6th Cir. 2005). Do not add Quillfeather's profits to line H: had it spent what it saved, it would have earned less, which is why the Eleventh Circuit struck profits stacked on avoided costs in Salsbury Laboratories, Inc. v. Merieux Laboratories, Inc., 908 F.2d 706 (11th Cir. 1990). For a New York common-law claim, delete this template; E.J. Brooks bars the measure.

Template 7: Reasonable royalty worksheet

Purpose: price the license the defendant took without asking. Owner: both experts. When: expert phase; always as an alternative measure, and as the primary one when the defendant disclosed but did not sell.

Example. At the negotiation date the licensee expects to sell 1.2 million units over the three-year protected period. The secret saves it $1.20 per unit compared with its best lawful alternative; developing its own version would cost about $900,000 (roughly $0.75 per unit) plus 18 months of delay; and the owner expects to lose about $0.40 per unit in margin by arming a competitor. The bargaining range runs from $0.40 to between $0.75 and $1.20. A royalty of $0.70 per unit, supported by an earlier $0.85 offer the owner made to a different distributor for a broader field, yields $840,000.

Drafting notes. The method comes from University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974), and the patent factors of Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). Real negotiations carry the most weight: in Sikes v. McGraw-Edison Co., 665 F.2d 731 (5th Cir. 1982), a 59-cent award tracked the inventor's 50-cent proposal; in MacDermid Printing Solutions LLC v. Cortron Corp., 833 F.3d 172 (2d Cir. 2016), evidence that the owner spent about $3.8 million developing the information supported a $3.79 million award despite the defendant's claim that reverse engineering would cost under $30,000. Under Utah's version of the UTSA a royalty does not require commercial use, but the nature of the defendant's use still "matters a great deal." StorageCraft Technology Corp. v. Kirby, 744 F.3d 1183 (10th Cir. 2014). Adjust comparables honestly: the Texas Supreme Court rejected a flat rate lifted from a sliding-scale deal in Southwestern Energy Production Co. v. Berry-Helfand, 491 S.W.3d 699 (Tex. 2016), and patent courts reject unadjusted comparables and rules of thumb, Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009); Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011). Under California's statute the royalty may run "for no longer than the period of time the use could have been prohibited," Cal. Civ. Code § 3426.3(b), so a paid-up figure must be tied to that period. More royalty modeling forms appear in Patent Damages Toolkit: Royalty Models, Expert Reports, and Daubert Motions.

Template 8: Head start analysis (worked example: a two-year head start on a manufacturing process)

Purpose: fix the period that bounds every remedy: the damages window and the length of any injunction. Owner: a technical expert who can testify to development time, with the damages expert applying the result. When: in rough form for the preliminary injunction motion, then in final form with expert reports.

HEAD START ANALYSIS: [Case]                           Prepared by: [ ]
1. Information at issue, by secret number
2. Lawful availability: public sources; what reverse engineering reveals;
   time and cost to reverse engineer; date each item became available
3. Defendant's actual timeline: start of work; first use of the secret;
   commercial launch (with documents)
4. Legitimate development path: phases, durations, and the sources for
   each (owner's own history, defendant's capabilities, industry benchmarks)
5. Head start = lawful market-entry date minus actual market-entry date
6. Credits (time under a preliminary injunction or standstill) and
   extensions (delay the defendant caused, such as recruiting key staff)
7. Could the defendant have done it at all without the secret?
8. Outputs: damages period; head start remaining at judgment; sensitivities

The facts. Corvane Coatings spent 2018 to 2022, and $9.2 million, developing a low-temperature cure process for powder coatings. Anyone can determine the coating's chemistry by analyzing the product (about three months of lab work), but not the process windows: oven profiles, catalyst loading sequence, and line speeds. In February 2024 Corvane's lead process engineer joined Halvorsen Finishes with a copy of the process parameter book. Halvorsen shipped a competing line in August 2024. Trial is set for September 2025.

The competing estimates. Corvane's experts lay out a 30-month lawful path starting in February 2024: 8 months of analysis and formulation, 12 months of pilot-line tuning (Corvane's own took 19), and 10 months of customer qualification. That puts lawful entry in August 2026, a 24-month head start. Halvorsen's expert says 14 months, relying on oven vendors' standard profiles, published papers, and qualification run in parallel, which puts lawful entry in April 2025 and the head start at 8 months.

The table shows why this template matters more than any other: the same liability verdict yields anything from $1.0 million and no injunction to $1.6 million plus an injunction lasting nearly a year. Halvorsen's own profits on the line (about $76,500 a month after apportionment) run below Corvane's monthly loss, so actual loss is the larger path; avoided development costs can be added only through Template 9, and only where the forum allows them (Template 6).

Drafting notes. The measure is the time it would have taken the defendant to develop the product legitimately, "either by reverse engineering or by independent development." K-2 Ski Co. v. Head Ski Co., 506 F.2d 471 (9th Cir. 1974). Winston Research Corp. v. Minnesota Mining & Manufacturing Co., 350 F.2d 134 (9th Cir. 1965), affirmed a two-year injunction measured by the time a legitimate competitor would need after public disclosure, and K-2 Ski directed the trial court to consider credit for time already served under a preliminary injunction. The clock limits money too: Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., 895 F.3d 1304 (Fed. Cir. 2018), vacated an award built mostly on sales after the head start had run. Courts do not demand precision, Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) (eight-month injunction), and an injunction without any time limit invites reversal, Sigma Chemical Co. v. Harris, 794 F.2d 371 (8th Cir. 1986). Where the defendant could never have built the technology alone, the cap may disappear entirely (the Sokol jury "may well have concluded" exactly that), and where independent development would have taken years, the order can be long: General Electric Co. v. Sung, 843 F. Supp. 776 (D. Mass. 1994), entered a seven-year production ban after finding that a defendant with no prior commercial process would have needed at least that long (GE argued ten years, the defendant three). The accused party should attack the owner's path phase by phase, with its own engineers' testimony and documents showing what it already knew; the owner should anchor each phase in its own development records and in what the defendant actually did with the stolen material.

Template 9: Single recovery matrix

Purpose: assign every dollar to exactly one bucket before the expert reports are served and again before the verdict form is drafted. Owner: owner's counsel and damages expert; the accused party should build its own version to find the overlaps. When: expert phase; pretrial conference.

Drafting notes. The statute frames the rule: unjust enrichment counts only to the extent "not addressed in computing damages for actual loss," and a royalty comes "in lieu of damages measured by any other methods." 18 U.S.C. § 1836(b)(3)(B). Motorola applied it as a choice between two non-overlapping paths, and the Eleventh Circuit struck profits stacked on avoided costs in Salsbury (Bucket 4 against Bucket 3). Bucket 6 is the one most often missed: if the award compensates for future harm, a post-trial injunction for the same period duplicates it, and the Federal Circuit affirmed denial of an 18-month suspension injunction on that ground in CardiAQ Valve Technologies, Inc. v. Neovasc Inc., 708 F. App'x 654 (Fed. Cir. 2017). The same opinion shows the verdict-side fix: the jury awarded one sum for two secrets, "awarded just once to avoid duplication." The verdict form in Template 15 should mirror this matrix line by line.

Template 10: Damages expert report outline and Rule 702 motion outline

Purpose: a report that survives a Rule 702 challenge, and a challenge that targets the report's real weaknesses. Owner: each side's expert and counsel. When: report deadlines; Daubert motion deadline.

DAMAGES EXPERT REPORT [Fed. R. Civ. P. 26(a)(2)(B)]
1. Assignment and compensation
2. Qualifications; publications (10 years); testimony (4 years)
3. Facts and data considered (list, with Bates ranges)
4. Summary of opinions: per secret, per measure, per period
5. Background: parties, market, and each secret's function
   (relying on [technical expert] for what each secret contributes)
6. Legal framework assumed, as instructed by counsel
7. Head start (Template 8)
8. Actual loss (Template 4)
9. Unjust enrichment: profits (Template 5); avoided costs (Template 6)
10. Reasonable royalty (Template 7)
11. Single recovery reconciliation (Template 9)
12. Sensitivities: alternative head starts; subsets of secrets; capture rates
Exhibits: schedules by secret and month; data dictionary

MOTION TO EXCLUDE OR LIMIT [Fed. R. Evid. 702]
I.   Standard: proponent must show each requirement is more likely than not
     met, including reliable application to the facts (2023 amendment)
II.  Fit: the model does not measure damages attributable to the secrets and
     conduct at issue
III. Inputs: unallocated development cost; whole-product revenue; no head
     start; unadjusted comparables; unverified assumptions from counsel
IV.  Application: double counting; arithmetic and data errors
V.   Relief: exclusion, or limitation to the supported portions; hearing
     under Fed. R. Evid. 104(a)

Drafting notes. The gatekeeping cases are Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and General Electric Co. v. Joiner, 522 U.S. 136 (1997), which lets a court reject an opinion connected to the data "only by the ipse dixit of the expert"; the rule itself is Fed. R. Evid. 702, and preliminary questions go to the court under Fed. R. Evid. 104(a). The fit argument draws on Comcast Corp. v. Behrend, 569 U.S. 27 (2013). Section 12 of the report is the owner's insurance policy: if the only damages evidence is excluded on appeal, the court of appeals may direct judgment, Weisgram v. Marley Co., 528 U.S. 440 (2000), and if only some secrets are found, a report without subsets leaves nothing to support the verdict (O2 Micro). The owner's opposition should show that the expert relied on fact witnesses with knowledge, as CardiAQ allowed, and that disputes about inputs go to weight. Deposition outlines for the damages expert are in Expert Deposition Toolkit: Outline Frameworks, Reliance Material Requests, and Rule 26 Protection Maps, and general expert forms are in the Expert Witness Toolkit.

Template 11: Preliminary injunction brief outline (owner)

Purpose: a brief that wins on evidence rather than on a presumption, and asks for an order a court can sign. Owner: owner's counsel. When: the first three weeks; earlier with a TRO, which lasts no more than 14 days unless extended. Fed. R. Civ. P. 65(b)(2).

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I.   Introduction: what was taken, what is at risk, the narrow order sought
II.  Facts (by declaration): forensic examiner (downloads, transfers,
     deletions); technical witness (what each secret is and does); business
     witness (customers, pricing, market position); timeline of discovery
     and diligence since discovery
III. Argument
     A. Likelihood of success: each secret (sealed appendix); reasonable
        measures; misappropriation; interstate commerce nexus
     B. Irreparable harm: specific evidence of dissemination risk, loss of
        secrecy, unquantifiable customer loss, inability to pay
     C. Balance of hardships: narrow order; hardship self-inflicted
     D. Public interest: commercial ethics; employee mobility preserved
     E. Scope and duration: affirmative acts; head start (Template 8);
        compliance with the employment proviso
     F. Security: proposed amount and basis
IV.  Proposed order (Template 13)

Drafting notes. The movant must show a likelihood of irreparable harm, not a possibility, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and the traditional four factors apply unless Congress clearly says otherwise, Starbucks Corp. v. McKinney, 602 U.S. 339 (2024); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). Do not build Part III.B on a presumption: Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009), refused one where the defendant sought only to use the secret, while suggesting a rebuttable presumption "might be warranted" when dissemination is likely, and Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), applied eBay to preliminary relief. The diligence timeline in Part II answers the delay argument before it is made. Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985). Part III.E must track 18 U.S.C. § 1836(b)(3)(A): no order preventing employment, conditions grounded in evidence of threatened misappropriation, and affirmative acts to protect the secret. Consider asking to consolidate the hearing with trial on the merits, Fed. R. Civ. P. 65(a)(2); otherwise the preliminary findings will not bind the court later. University of Texas v. Camenisch, 451 U.S. 390 (1981). The standards are developed in Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court, and a parallel injunction-briefing set for a different claim appears in False Advertising Toolkit: Substantiation Files, Surveys, and Injunction Briefing.

Template 12: Opposition outline and bond worksheet (accused party)

Purpose: defeat or narrow the injunction, and make the owner pay for the risk it asks the court to impose. Owner: accused party's counsel, with a finance witness for the bond. When: within the briefing schedule, which is often a week or less.

OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
I.   The secrets are not identified with particularity (identify the gaps)
II.  No likely success: public sources; independent development record;
     no use; no improper acquisition
III. No irreparable harm: delay; no dissemination; damages adequate and
     collectible
IV.  The proposed order is overbroad: restrains lawful competition; bars
     employment contrary to 18 U.S.C. § 1836(b)(3)(A)(i); conflicts with
     [state] restraint-of-trade law; has no end date
V.   Alternatives already offered: standstill; neutral forensic review;
     clean-room protocol
VI.  Any order requires substantial security (worksheet below)

Drafting notes. The Third Circuit's opinion in Mallet & Co. v. Lacayo, 16 F.4th 364 (3d Cir. 2021), supports nearly every section: the owner must identify its secrets with specificity, an order "ejecting a competitor from the marketplace" requires a "truly extraordinary showing," and the bond must rest on a case-specific analysis of the harm a wrongful injunction would cause (the district court had set $500,000 against a request for more than $21.5 million). Identification gaps also matter under InteliClear, LLC v. ETC Global Holdings, Inc., 978 F.3d 653 (9th Cir. 2020). Section IV should cite the governing state law, such as California's rejection of inevitable disclosure in Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443 (2002), and Texas's bar on enjoining the use of general knowledge, skill, and experience, Tex. Civ. Prac. & Rem. Code § 134A.003(a). Security under Fed. R. Civ. P. 65(c) caps what the enjoined party can recover for a wrongful injunction in most circuits, which is why every line of the worksheet needs a sworn source. If the order issues, move for a stay pending appeal under Nken v. Holder, 556 U.S. 418 (2009), and appeal under 28 U.S.C. § 1292(a)(1).

Template 13: Proposed injunction order: model clauses

Purpose: an order specific enough to enforce, narrow enough to survive appeal, and short enough to read. Owner: owner drafts; the accused party marks up. When: filed with the motion for preliminary relief; revised for a permanent injunction after verdict.

[PROPOSED] [PRELIMINARY / PERMANENT] INJUNCTION

1. Definitions. "Trade Secrets" means the information described in
   Confidential Appendix A, filed under seal and served on each Enjoined
   Party. "Enjoined Parties" means [Defendants]; their officers, agents,
   servants, employees, and attorneys; and other persons in active concert
   or participation with any of them who receive actual notice of this Order.
2. Prohibited conduct. The Enjoined Parties shall not use or disclose the
   Trade Secrets, or any material containing or derived from them, including
   in [specific product, process, or solicitation tied to the secrets].
3. Return and quarantine. Within [7] days Defendants shall deliver to
   [Neutral Forensic Examiner] every device, account, and storage location
   that contains or has contained any Trade Secret, under the protocol in
   Appendix B. No Enjoined Party shall delete or alter such material except
   as the Examiner directs.
4. Certification. Within [30] days each Defendant shall file a declaration
   under penalty of perjury identifying each location searched and
   confirming compliance with paragraphs 2 and 3.
5. Employment. Nothing in this Order prevents any person from entering into
   an employment relationship. [Individual] may work for [New Employer]
   subject only to these conditions, which rest on the evidence of
   threatened misappropriation found at [Findings paragraphs]:
   (a) no assignment to [named program] until [date]; (b) the screening
   protocol in Appendix C; (c) quarterly compliance certifications.
6. Duration. This Order expires on [date], the period the Court finds
   necessary to eliminate the commercial advantage derived from the
   misappropriation, unless earlier modified or dissolved. Any party may
   move to modify or dissolve on a showing that a Trade Secret has become
   generally known through no fault of an Enjoined Party, or that changed
   circumstances make prospective enforcement inequitable.
7. Security. [Plaintiff] shall post security of $[ ] within [3] business
   days, and this Order takes effect when it does. [Fed. R. Civ. P. 65(c)]
8. Monitoring. The Examiner shall report to the Court and counsel within
   [45] days. [The Court appoints (name) as special master for compliance.]
9. [Exceptional circumstances only] Royalty in lieu of prohibition.
   Defendants may continue [specified use] through [date] on payment of
   $[ ] per [unit], paid monthly into [escrow] and secured by [bond or
   letter of credit]. A payment more than [10] days late terminates this
   paragraph without further order, and paragraph 2 then applies in full.
10. Notice. Within [5] days Defendants shall serve this Order (without
   Appendix A) on [listed persons and entities] and file proof of service.
11. Jurisdiction. The Court retains jurisdiction to enforce and modify
   this Order.

Drafting notes. Fed. R. Civ. P. 65(d) requires specific terms, a description of the restrained acts "in reasonable detail" without reference to other documents, and identifies who is bound. The sealed Appendix A is the accepted workaround for describing secrets without publishing them, Henry Hope X-Ray Products, Inc. v. Marron Carrel, Inc., 674 F.2d 1336 (9th Cir. 1982), and specificity is a balance, not an absolute: the Seventh Circuit upheld an order covering hundreds of pages of manuals against a defendant with a record of evasion. Minnesota Mining & Manufacturing Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001). Paragraph 3 implements the "affirmative actions" authority of § 1836(b)(3)(A)(ii), and paragraph 8 can use a master under Fed. R. Civ. P. 53. Paragraph 5 is the DTSA employment proviso in operational form; delete it if no individual is involved, and never replace it with a general ban on working for a competitor. Paragraph 6 builds in the exit that Fed. R. Civ. P. 60(b)(5) would supply anyway, and it should say who carries the burden: in MicroStrategy, Inc. v. Business Objects, S.A., 369 F. Supp. 2d 725 (E.D. Va. 2005), the enjoined party had to prove changed circumstances, and the court kept the injunction in place because the documents' age alone did not show lost value or secrecy. Both sides should remember that a motion to terminate made or opposed in bad faith can itself trigger fees under § 1836(b)(3)(D). Paragraph 9 tracks the royalty-injunction authority of § 1836(b)(3)(A)(iii) and adds the self-executing default that Motorola shows is needed. A permanent order can be broader where the defendant has shown it cannot be trusted, Wyeth v. Natural Biologics, Inc., 395 F.3d 897 (8th Cir. 2005), and can reach nonparties who help evade it, ClearOne Communications, Inc. v. Bowers, 651 F.3d 1200 (10th Cir. 2011). Geographic scope should be justified on the record; information "can pass to competitors anywhere in the world," but "geographical limits often can be set." Nordson Corp. v. Plasschaert, 674 F.2d 1371 (11th Cir. 1982). Enforcement forms are in Order Enforcement Toolkit: Show Cause Motions, Contempt Briefing, and Sanctions.

Template 14: Willful and malicious evidence log

Purpose: collect, as it surfaces, the evidence that supports exemplary damages, fees, and a broader injunction. Owner: owner's counsel (the accused party should keep a mirror log of mitigating facts). When: from intake through the pretrial order.

Drafting notes. Calibrate the "What it shows" column to the forum. Courts split on malice: an "intent to cause injury or harm" instruction survived review in Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690 (4th Cir. 2021), while the Seventh Circuit applied conscious disregard of the owner's rights in Mangren Research & Development Corp. v. National Chemical Co., 87 F.3d 937 (7th Cir. 1996), and Texas codifies conscious disregard but requires clear and convincing proof. The conduct that persuades is concrete: findings that misconduct was "calculated," "deliberate," and "reprehensible" supported punitive damages in Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d 1387 (4th Cir. 1971); repeated concealment supported $10 million in punitive damages in Hallmark Cards, Inc. v. Monitor Clipper Partners, LLC, 758 F.3d 1051 (8th Cir. 2014); and destruction of evidence and false testimony supported a broad permanent injunction in Wyeth. The last column matters because the DTSA bars exemplary damages and fees against an employee who never received the whistleblower notice. 18 U.S.C. § 1833(b)(3). Spoliation entries may also support sanctions under Fed. R. Civ. P. 37(e), and the reprehensibility factors of State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), will frame any constitutional challenge to an uncapped award.

Template 15: Verdict form skeleton

Purpose: a form that lets the jury do the single recovery and head start work, and that survives a partial verdict. Owner: both sides; exchange drafts before the final pretrial conference. When: with proposed instructions.

VERDICT FORM [adapt to the secrets, measures, and law that apply]
PART A. LIABILITY (answer separately for each of Trade Secrets 1 to [N])
 A1. Did [Plaintiff] prove that Trade Secret [n] was a trade secret?   Yes / No
 A2. If yes, did [Plaintiff] prove that [Defendant] misappropriated it? Yes / No
PART B. PERIOD (for each secret answered "Yes" in A2)
 B1. On what date did [Defendant] first use or disclose Trade Secret [n]? ____
 B2. On what date could [Defendant] have obtained the same information by
     proper means, such as independent development or reverse engineering?
     ____ (write "never" if you find it could not have)
PART C. COMPENSATORY DAMAGES (only for the period from B1 to B2)
 C1. [Plaintiff]'s actual loss caused by misappropriation of
     Trade Secret [n]: $____
 C2. Unjust enrichment caused by misappropriation of Trade Secret [n] that
     you did NOT include in C1:
     (a) [Defendant]'s profits on sales not included in C1: $____ [advisory]
     (b) development costs [Defendant] avoided: $____
     Do not include in (a) any profit [Defendant] earned only because of the
     savings you award in (b).
 C3. [Only if instructed] Reasonable royalty in place of C1 and C2: $____
PART D. WILLFUL AND MALICIOUS CONDUCT
 D1. Did [Plaintiff] prove [by clear and convincing evidence, if required]
     that [Defendant]'s misappropriation of Trade Secret [n] was willful and
     malicious? Yes / No
PART E. CONTRACT CLAIM
 E1. Damages for breach of [agreement] not already awarded in Part C: $____

Drafting notes. The Federal Judicial Center's Trade Secret Case Management Judicial Guide § 10.7 (2023) warns that the verdict form "is at least as important and fraught with the potential for error as the instructions" and recommends advisory questions, such as willful and malicious conduct, where the court will decide the consequence. Choose the format deliberately: special verdict or general verdict with written questions, Fed. R. Civ. P. 49. Part A's per-secret structure is what saves a verdict when only some secrets are found; O2 Micro lost an unjust enrichment award without it, and 67 asserted secrets became 8 in Steves. Part B implements the head start (the Tenth Circuit approved a comparable period instruction in Russo v. Ballard Medical Products, 550 F.3d 1004 (10th Cir. 2008)) and gives the court the dates it needs for any injunction. Mark C2(a) "advisory" if the court treats disgorgement as equitable, Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., 895 F.3d 1304 (Fed. Cir. 2018); Fed. R. Civ. P. 39(c); Fed. R. Civ. P. 52(a). Where legal and equitable issues overlap, the jury's findings on common facts come first. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959). Object to the form under Fed. R. Civ. P. 51 before deliberations, and raise any inconsistency before the jury is discharged. More trial forms are collected in Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions.

Template 16: Fee motion outlines

Purpose: recover fees on a willful and malicious finding, or for the accused party, on a claim made in bad faith. Owner: the prevailing party's counsel. When: within 14 days after judgment unless a statute or order sets another time. Fed. R. Civ. P. 54(d)(2)(B).

A. OWNER'S MOTION (willful and malicious misappropriation)
I.   Timeliness [Rule 54(d)(2)(B); local rule]
II.  Entitlement: 18 U.S.C. § 1836(b)(3)(D); the jury's finding at
     [Verdict D1]; [state statute]; whistleblower notice given to each
     individual defendant [18 U.S.C. § 1833(b)(3)]
III. Amount: lodestar (hours x reasonable rates); allocation between
     fee-bearing and other claims; degree of success; effect of any
     exemplary award on the need for fees
IV.  Nontaxable expenses (expert fees) only where a statute authorizes them
V.   Costs by separate bill under Rule 54(d)(1) and 28 U.S.C. § 1920
B. ACCUSED PARTY'S MOTION (claim made in bad faith)
I.   Prevailing party status
II.  Objective speciousness: no identified secret, no evidence of
     acquisition or use, claims abandoned on the eve of trial
III. Subjective bad faith: timeline of what plaintiff knew and when;
     purpose (to slow a competitor or punish a departing employee)
IV.  Amount, as in A.III; alternative grounds [28 U.S.C. § 1927]

Drafting notes. Fees are for the court even when a jury tried the case, and the DTSA's three triggers are a bad-faith claim ("which may be established by circumstantial evidence"), a bad-faith motion to terminate or opposition to terminating an injunction, and willful and malicious misappropriation. 18 U.S.C. § 1836(b)(3)(D). The amount starts with the lodestar, Hensley v. Eckerhart, 461 U.S. 424 (1983); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), and a court may weigh any exemplary award in deciding whether fees are also needed, as the O2 Micro court did in denying them. Expert fees are not taxable without explicit statutory authority, Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987); Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. 334 (2019); California's statute supplies that authority, Cal. Civ. Code § 3426.4. For Part B, a defendant may prevail without a merits judgment, CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016), but not through a voluntary dismissal without prejudice, Dunster Live, LLC v. LoneStar Logos Management Co., 908 F.3d 948 (5th Cir. 2018); California courts require objective speciousness and subjective bad faith, FLIR Systems, Inc. v. Parrish, 174 Cal. App. 4th 1270 (2009); and counsel who multiply proceedings vexatiously face 28 U.S.C. § 1927. A pending fee motion does not delay the time to appeal the merits, Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), unless the court extends it under Fed. R. Civ. P. 58(e). Petition mechanics are in Preparing and Opposing a Fee Petition: A Practical Guide and Fee Shifting and Litigation Cost Recovery Toolkit.

Template 17: Post-trial remedies calendar

Purpose: one page of deadlines, filled in the day the judgment is entered. Owner: both sides' docketing teams, checked by lead counsel. When: the day of verdict, and again on entry of judgment.

Drafting notes. The one that catches lawyers is prejudgment interest: a post-judgment motion for discretionary prejudgment interest is a Rule 59(e) motion, so it is due in 28 days, not with the fee motion. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989). Without a Rule 50(b) motion, the court of appeals cannot review the sufficiency of the damages evidence at all. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). A remittitur must come with the option of a new trial, Hetzel v. Prince William County, 523 U.S. 208 (1998), and state-law claims carry the state's excessiveness standard into federal court, Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). Interest runs from the date judgment is entered, Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990), and stays pending appeal follow Nken v. Holder, 556 U.S. 418 (2009), and Fed. R. App. P. 8. The motion standards are developed in Post-Trial Toolkit: Rule 50 Renewals, New Trial Briefs, and Remittitur Analyses.

Template 18: Settlement remedy terms

Purpose: convert a remedies position into terms that hold up and can be enforced. Owner: both sides. When: mediation onward; the best windows are after the preliminary injunction ruling and after Daubert rulings.

SETTLEMENT TERM SHEET: REMEDY PROVISIONS
1. Payment: $[ ] [lump sum / installments]; acceleration on default;
   stipulated judgment for any unpaid balance, held in escrow
2. [Option] License: [paid-up / running royalty of $( ) per unit] for
   [field, territory, term]; audit right; no sublicensing
3. Consent judgment and stipulated permanent injunction: terms of
   Template 13, with sealed Appendix A and an end date tied to the
   head start
4. Return, destruction, and forensic certification by [examiner], with a
   [12]-month audit right on [7] days' notice
5. Clean-room protocol for any redesign, with an independent monitor
6. Releases: scope, carve-outs for unknown future misuse, coverage of
   current and former employees
7. Allocation of the payment among claims and defendants (for set-off)
8. Dismissal under Fed. R. Civ. P. 41(a), with the court expressly
   retaining jurisdiction to enforce the settlement
9. Confidentiality of terms; agreed statement to customers, if any

Drafting notes. Item 8 matters because a federal court has no inherent power to enforce a settlement after dismissal unless the dismissal order retains jurisdiction or incorporates the terms. Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994); Fed. R. Civ. P. 41. Item 7 avoids the set-off fight that nonsettling defendants lose when they raise it too late, Advanced Fluid Systems, Inc. v. Huber, 958 F.3d 168 (3d Cir. 2020). A Rule 68 offer shifts post-offer costs but not DTSA fees, because costs include fees only where the underlying statute defines them that way, Marek v. Chesny, 473 U.S. 1 (1985); Fed. R. Civ. P. 68. Negotiation communications are protected by Fed. R. Evid. 408, but facts otherwise discoverable stay discoverable. Item 3 converts the owner's injunction into a contempt-enforceable order without a trial, and item 2 lets the accused party buy certainty instead of fighting about the head start. Full settlement forms are in Settlement Toolkit: Term Sheets, Releases, Offers of Judgment, and Enforcement.

Common drafting mistakes

• One number for many secrets. Every model, schedule, and verdict line should break out by secret or agreed group (Templates 5, 10, and 15).
• Development cost as a stand-in for savings. Allocate it to the secrets found and adjust it to the defendant's circumstances, or expect Syntel and Pu to be quoted back at you (Template 6).
• No written head start. If neither side commits to dates, the court will pick its own, or the appellate court will vacate the award (Template 8).
• Stacked buckets. Profits on top of the savings that produced them, or future damages on top of an injunction for the same period (Template 9).
• An order that bars working for a competitor. The DTSA forbids it; draft conditions tied to evidence instead (Template 13, paragraph 5).
• An injunction with no end date or exit. Tie the term to the head start and include a modification clause (Template 13, paragraph 6).
• A bond request with no sworn numbers. Courts set security on evidence, not adjectives (Template 12).
• Prejudgment interest requested with the fee motion. It is a Rule 59(e) motion with a 28-day deadline (Template 17).
• A settlement dismissal that forgets to retain jurisdiction (Template 18).

Frequently asked questions

Who should sponsor the head start analysis, the damages expert or a technical expert? A technical expert, or a fact witness with development experience. The damages expert applies the dates; someone who has actually built the product or process must explain why each phase of the lawful path takes as long as it does. The damages expert who invents the timeline is the easiest witness to exclude.

Can a proposed order describe the secrets by reference to a sealed appendix? Yes. Rule 65(d) ordinarily forbids describing restrained acts by reference to another document, but courts accept a confidential appendix served on the parties because publishing the secrets in the order would destroy them (Henry Hope). Make the appendix match the identification the court has already accepted.

What happens if the jury finds only some of the secrets were misappropriated? If the damages evidence was organized by secret, the court can enter judgment on the secrets found. If it was not, the award may fall entirely for lack of a reasonable basis to apportion (O2 Micro). Build per-secret schedules into the expert report and the verdict form from the start.

How much security should an owner expect to post for a preliminary injunction? Enough to cover the harm a wrongful injunction would cause, determined case by case. Mallet vacated a bond set without that analysis. Owners should propose a figure with a rationale; accused parties should prove their figure with documents (Template 12).

If the court will decide disgorgement, should the jury still hear the profits evidence? Often yes, as an advisory jury or because the same facts bear on legal claims, which the jury must decide first (Beacon Theatres). Ask the court to settle the allocation of issues at the final pretrial conference, and preserve arguments through Rule 52 filings (Motorola).

Do these templates work in state court? Yes, with adaptation. State statutes change the royalty rule (California, Virginia), the burden on apportionment (Virginia), the exemplary standard (Texas), and the availability of avoided costs (New York), and state procedure governs disclosure and post-trial deadlines.

Practical takeaways

• Write the head start down early, with dates and sources, because it sets both the damages window and the injunction's length.
• Run every model by secret, by measure, and by period, and reconcile the buckets before anyone files a report.
• Ask for orders a court can sign: a sealed appendix, specific prohibited acts, a neutral examiner, an end date, and no ban on employment.
• Make security, exemplary damages, and fees evidence questions, not rhetoric, on both sides.
• Put the post-trial calendar on paper the day the verdict comes in.

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

Related Documents

Companion documents in this series

• Trade Secret Damages and Remedies: Unjust Enrichment, Reasonable Royalties, Injunctions, and Exemplary Awards: the doctrine and leading cases behind each template.
• Proving or Defending Against Trade Secret Damages: A Practical Guide: when to use each template in the life of a case.
• Trade Secret Damages and Remedies Checklist: A Practical Checklist: the task-by-task audit for both sides.

Related Toolkits

• Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols: the identification and confidentiality forms these templates assume.
• Expert Deposition Toolkit: Outline Frameworks, Reliance Material Requests, and Rule 26 Protection Maps: outlines for deposing and defending damages experts.
• Post-Trial Toolkit: Rule 50 Renewals, New Trial Briefs, and Remittitur Analyses: briefs for the motions on the Template 17 calendar.
• Patent Damages Toolkit: Royalty Models, Expert Reports, and Daubert Motions: royalty and apportionment models that trade secret cases borrow.
• Civil Damages Toolkit: Contract, Tort, Statutory, and Punitive Recovery: general damages and punitive damages forms.
• Expert Witness Toolkit: retention, disclosure, and challenge forms for experts.
• Fee Shifting and Litigation Cost Recovery Toolkit: fee petitions and bills of costs.
• Order Enforcement Toolkit: Show Cause Motions, Contempt Briefing, and Sanctions: enforcing the injunction once it issues.
• Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions: sealing the appendix and the financial exhibits.
• Settlement Toolkit: Term Sheets, Releases, Offers of Judgment, and Enforcement: full settlement documents.
• Trade Secret Protection Toolkit: Building and Defending a Confidentiality Program: the program records that later prove reasonable measures and willfulness.

Related Articles and Guides

• Managing Discovery in a Trade Secret Case: A Practical Guide: sequencing the discovery that feeds Templates 3 through 8.
• Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act: A Practical Guide: the overall DTSA litigation sequence.
• Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court: the standards behind Templates 11 through 13.
• Proving Damages in Civil Litigation: Certainty, Causation, and the Numbers That Survive: certainty and causation rules for every model.
• Expert Witnesses After the 2023 Amendment to Rule 702: Daubert, Disclosure, and Cross-Examination: the gatekeeping standard behind Template 10.
• Preparing and Opposing a Fee Petition: A Practical Guide: the procedure behind Template 16.

Related Checklists

• Damages Proof and Expert Model Checklist: A Practical Checklist: testing any damages model before it is served.
• Preliminary Injunction and TRO Application Checklist: A Practical Checklist: the filing package for Template 11.