Document the history around a specific, identified secret, not around the product as a whole. Build a dated chronology from source-control history, design and review records, builds and releases, contributor records, and access logs. Keep a separate record of the steps you took to keep the code confidential. Preserve originals and metadata early, and do it in a way that complies with local privacy, labor, and procedural rules.
This article is general information, not legal advice. Whether something qualifies as a trade secret, how precisely it must be described, and how evidence is collected and protected in court all depend on the jurisdiction. Source-control commands and file-handling tips below are practical engineering suggestions. They are not statutory requirements, and no record on this list guarantees a legal outcome.
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Start by defining what the secret actually is
A trade secret claim concerns particular information, not a product label. The World Intellectual Property Organization (WIPO) notes that courts generally require sufficient specificity and that the claimant must establish that the information qualifies as a trade secret (WIPO Guide, Part V). For software, that means naming the thing you say is secret. It might be a particular module of source code, an algorithm, an architecture, a process, or a defined combination of elements.
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- Name the component, files, directories, or documents in which the secret is embodied.
- State what is not claimed, such as open-source libraries, public APIs, and widely known techniques.
- Note the commercial reason the information matters. WIPO’s FAQ says: “The information must have actual or potential commercial value because it is secret.” (WIPO FAQ)
Have counsel in the relevant jurisdiction review this description. The level of detail required, and when it must be disclosed to the other side or to the court, varies across legal systems.
Keep two evidence tracks: development history and secrecy practices
These answer different questions, and mixing them makes both weaker.
- Development history shows what was created, by whom, when, and how it changed. It supports questions such as “What records prove when this software was developed?” and “How do I show who wrote the code?”
- Secrecy practices show how the information was protected. They answer “How do I prove we kept the source code confidential?”
WIPO treats the secrecy steps as part of what qualifies information for protection, and gives examples such as marking confidential materials, access controls, systematic monitoring, and employee awareness. What counts as reasonable depends on the circumstances (WIPO FAQ; WIPO Guide, Part IV).
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Build the development chronology
Organize records around the milestones they substantiate: first design, first working prototype, introduction of the claimed component, major rewrites, releases. The following categories are practical groupings, not a universal statutory checklist (WIPO Guide, Part V; Part IV).
| Record type | What it can help show | Preservation notes and limits |
|---|---|---|
| Source-control history (commits, branches, tags) | Sequence of changes, who committed them, how the claimed component evolved | Export the full history and keep the original repository. Local commit metadata can be edited (see below), so pair it with hosting-side logs. |
| Design documents, specs, diagrams, notebooks | Concept and architecture before and during implementation | Keep original files with their native metadata and version history, not only PDF printouts. |
| Issue tracker and code-review records | Reasoning, who proposed and approved changes, discussion of the claimed component | Export with timestamps and user identities. Note retention limits of the tool. |
| Build and release records | When particular versions were built, shipped, or deployed, and to whom | Keep CI logs, release notes, artifact checksums, and distribution lists, if they exist. |
| Contributor records | Who worked on the project and under what terms | Employment and contractor agreements, onboarding and offboarding records, account-to-person mapping. |
| Access history | Who could view or obtained the code, and when | Repository permission history, VPN and authentication logs, download or clone records. Collect only as local law permits. |
| Relevant communications | Context for decisions, handoffs, and disclosures | Collect narrowly and lawfully; consider privacy and privilege before gathering. |
Exporting source-control history
If the project uses Git, a defensible export typically includes a complete copy of the repository and a readable log. These commands are a common starting point; adapt them to your environment and have the person running them record what they did and when.
- Make a full mirror so that all branches and tags are retained:
git clone --mirror <repo-url> project-mirror.git - Create a single-file bundle for archiving:
git bundle create project-all.bundle --all - Produce a log that separates author and committer data:
git log --all --date=iso-strict --pretty=format:'%H|%an|%ae|%ad|%cn|%ce|%cd|%s' > history.txt - Limit a view to the claimed component:
git log --follow --date=iso-strict -- path/to/component
Be aware of what this output can and cannot prove. Git’s author and committer dates and names are set by the client and can be changed, and history can be rewritten by rebasing or force-pushing. Squashed or imported histories may also hide earlier work. Corroborate with records that the developer could not alter alone, such as the hosting platform’s audit logs, issue-tracker timestamps, email, and build-server records. Note any known history rewrites, repository migrations, or merges of acquired code in your chronology rather than leaving them for the other side to discover.
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Showing who wrote the code
A commit under a name is not, by itself, proof of who actually wrote the work or whether that person was authorized to. Build the authorship picture from several layers:
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- a mapping from each account or email to a real person and role, with start and end dates;
- the agreements that governed each contributor’s work;
- review and discussion records showing who proposed, reviewed, and approved changes to the claimed component;
- a list of third-party, open-source, or acquired code, with its origin, so that the claimed secret is cleanly separated from it.
Document secrecy practices separately
Gather the records that show the code was treated as confidential, and date them. Examples are written confidentiality policies, signed confidentiality agreements, “confidential” markings on documents and source headers, role-based repository permissions, network and device controls, and any monitoring or audit logs. WIPO lists marking, access controls, monitoring, and employee awareness as examples of reasonable steps and says source code can be a trade secret subject to access management (WIPO Guide, Part IV; Part VII).
Organize them by what they protected and when:
- Which policy or agreement applied to the claimed component at each point in the chronology.
- Who held access at each stage, and how access was granted and removed.
- What happened when the code left controlled systems, such as shared with a customer, a contractor, or a partner, and under what terms.
- Training or reminders given to staff, with dates.
Gaps matter. If the code sat in a broadly accessible repository for a period, or an agreement was signed late, record that factually. Counsel can then assess it, and you will not be surprised by it later.
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Preserve evidence early, lawfully, and with context
WIPO recommends collecting evidence early, complying with procedural, privacy, and labor rules, and following digital-forensics practices (WIPO Guide, Part V). In practice that means:
- Stop deletion. Suspend automatic deletion, log rotation, and account cleanup for systems that hold relevant records. Do this before departing staff’s accounts are wiped.
- Copy, don’t alter. Work from copies, and keep the originals untouched with their metadata (file timestamps, version history, headers).
- Record provenance. For each item, note who collected it, from which system, on what date, by what method, and where it is stored. Keep a simple chain-of-custody log.
- Limit access. The collected set itself contains the secret, so store it with access controls and keep a record of who opens it.
- Check the rules before collecting. Employee monitoring, access to personal devices or accounts, and review of private communications may be restricted by privacy and labor law. Do not collect in ways that might break local law, even where the data is technically reachable.
- Bring in forensic help where stakes are high. A qualified digital-forensics examiner can image devices and document the method. No service can promise that the result will be admissible.
Evidence-preservation orders, discovery procedures, and methods for protecting confidential material in court vary across legal systems (WIPO Guide, Part V). Ask counsel what applies where the dispute is or may be brought.
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A cryptographic hash is a fixed-length fingerprint of a file. If a file changes, its hash changes, so hashes help detect alterations. WIPO notes that a timestamped hash may help show that matching data existed at a recorded time (WIPO Guide, Part VII).
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A simple routine for a collected set:
- Compute a hash for each file, for example
sha256sum * > manifest.sha256, or for a bundle,sha256sum project-all.bundle. - Store the manifest separately from the files, and record the date, tool, and operator.
- Re-run the check whenever the set is copied or transferred, and log the result.
- Where a third-party timestamping service is used, keep its token with the manifest and note which service issued it.
Be clear about the limits. A hash alone does not establish who authored a file, that its contents are true, or that a court will admit it. It only supports the claim that these bytes are unchanged since the hash was taken. Keep the underlying source records and document how they were collected.
Expect the same records to be read by the other side
A development history does not only support the claimant. Under general trade secret principles, independent development can be a lawful route to the same information, so similarity between two products does not by itself settle liability (WIPO FAQ). A defendant may use its own commit history, design notes, and timelines to argue it built its code on its own. Whichever side you are on, a chronology should be able to show:
- when the claimed component first existed, and how it changed;
- who had access to it and when, so that any link between the two codebases can be examined;
- where the code at issue came from, whether written in-house, derived from public sources, or acquired.
If you are the party accused, document your own development with the same discipline: early design notes, dated commits, and the people involved. Avoid reconstructing a history after the fact.
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Rank your records before you rely on them
Not every record has equal value. These axes help you decide what to emphasize and what to corroborate.
| Axis | Stronger | Weaker |
|---|---|---|
| Contemporaneousness | Created at the time of the event by the ordinary course of work | Written or reconstructed after a dispute arose |
| Link to a specific claimed secret | Maps clearly to an identified component | Refers generally to “the product” |
| Provenance and integrity | Original system, native metadata, documented collection, hashed | Screenshots, forwarded copies, unknown origin |
| Ability to show authorship, change, or access | Server-side logs plus agreements and reviews | Editable client-side fields alone |
| Confidentiality of handling | Stored with restricted access and a custody log | Shared informally by email or chat |
| Legal compliance | Collected under counsel’s guidance and local privacy and labor rules | Gathered through monitoring or access that may be unlawful |
Common mistakes
- Claiming the whole codebase instead of identifying the particular secret.
- Letting the secrecy record and the development record blur together.
- Cleaning up or rewriting repository history after a dispute is foreseeable.
- Relying only on Git’s self-reported dates and author names.
- Collecting employee data in ways that conflict with local privacy or labor rules.
- Treating a hash or timestamp as proof of authorship or admissibility.
- Storing the compiled evidence set somewhere less protected than the original code.
Hand the package to counsel in a usable form
A practical deliverable has four parts: the description of each claimed secret; a dated chronology keyed to those descriptions; a secrecy-practices file; and an evidence index listing each item’s source, collector, collection date, storage location, and hash. Counsel in the relevant jurisdiction can then decide what to disclose, when, and how to ask the court to protect confidential material.
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