This Commentary was written from both legal and business perspectives as a useful reference for the design and implementation of trade secret governance and protection programs in corporate environments. It can also provide insight to litigators and judges about the practical ways companies approach the “reasonable efforts” requirement in trade secret law. The central message is that programs to manage trade secrets, like other business processes, should align with business objectives in the context of the needs of the specific business. Ideally, trade secret management should be contextual and strategic, and not just a collection of “boilerplate” forms and protocols that may bear little relationship to the actual trade secrets and risk environment of a particular company.

While trade secret management demands strategic business thinking, it also has a legal dimension. The existence of a trade secret depends in part on whether the company has exercised “reasonable efforts” (or “reasonable measures”) directed at maintaining its secrecy. This standard corresponds to the relevant circumstances of each enterprise, so that there can be no “one size fits all.” In effect it suggests that the judge or jury apply the same kind of analysis; namely, an assessment of the value of, and risks to, specific trade secrets in the context of the company’s particular business and resources. We hope that this paper will help management formulate a proactive, tailored, and practical approach to managing trade secret assets that will address both business and legal requirements.

Please note that this version of the Commentary is open for public comment through October 31, 2022, and suggestions for improvements are welcome.

Jim Ko
Sr. Program Attorney
The Sedona Conference
[email protected]

P.S. Please join us on May 9-10 for The 2022 Sedona Conference on Trade Secrets, where we will present for public dialogue for the first time this and many other published and forthcoming Sedona Working Group 12 on Trade Secrets commentaries. For program page and to register, click here. Please join the dialogue!  

The Sedona Conference WG12 on Trade Secrets

The mission of Working Group 12 is to develop consensus and nonpartisan principles for managing trade secret litigation and well-vetted guidelines for consideration in protecting trade secrets, recognizing that every organization has and uses trade secrets, that trade secret disputes frequently intersect with other important public policies such as employee mobility and international trade, and that trade secret disputes are litigated in both state and federal courts.

To become a member of The Sedona Conference Working Group Series (WGS) and WG12, please visit https://thesedonaconference.org/join.

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