To document suspected trade secret misappropriation, identify the specific information claimed as secret, preserve reasonably relevant records, and build a dated chronology linking each allegation—access, acquisition, disclosure, or use—to its own evidence. An access log may show that an account reached a file; by itself, it does not establish what a person learned, whether information was copied, or whether it was later used.
This guide uses the U.S. Defend Trade Secrets Act (DTSA) and Federal Rules of Civil Procedure as its baseline. State law, forum rules, case orders, and the facts can change what is required. Counsel should identify the governing law and preservation obligations for the particular matter.
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Start by defining the information you claim is secret
The DTSA covers information in many forms, but the information must derive independent economic value from not being generally known or readily ascertainable, and its owner must have taken reasonable measures to keep it secret. A case record should therefore identify both the information at issue and the controls used to protect it.
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Assign each asserted secret, or coherent set of information, a stable identifier and version. Describe it precisely enough to distinguish it from public material, general knowledge, and independently developed information. Use that description consistently in pleadings, discovery responses, declarations, and expert work. Keep a dated record of changes to the claimed information and explain which version is relevant to each event.
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Document how secrecy was protected in practice
Preserve records that show how access and use were limited, such as confidentiality and limited-use agreements, access-control policies, confidentiality labels, role permissions, and training records. Record when these measures took effect, who was covered, and how permissions operated in practice. No single label or contract is specified by the statute as sufficient on its own.
Plan with counsel to avoid revealing the alleged secret unnecessarily in public filings. The DTSA directs courts to take appropriate action to preserve confidentiality in proceedings under the chapter, consistent with applicable procedural and evidence rules.
Separate access, acquisition, disclosure, and use
The DTSA treats different conduct and knowledge circumstances as relevant to misappropriation. Keep each factual proposition distinct instead of treating a technical event as proof of the whole claim. For example, an audit record may establish that an account accessed a repository, while other evidence is needed to show who was using that account, what information was acquired, or whether it was disclosed or used.
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| Proposition | Records that may bear on it | What the record alone may not establish |
| Permission or access | Permission histories, authentication records, repository or application audit logs | That a named person was using the account, understood the information, or copied it |
| Acquisition or copying | Download, export, print, transfer, or device records; document histories; corroborating communications | That the information was later disclosed or used, or that the means of acquisition were improper |
| Disclosure | Sharing and transfer records, messages, recipient records, or testimony | That the recipient obtained or used the asserted secret, or that the disclosure lacked consent |
| Use | Relevant work product, communications, product or process records, and testimony tied to the claimed information | By itself, that similarities came from the secret rather than public knowledge, independent development, or another lawful source |
The applicable legal theory and circumstances matter. The DTSA definition includes acquisition through improper means and certain unauthorized disclosure or use where the person had the specified knowledge or notice concerning the information’s source or a duty. It excludes reverse engineering, independent derivation, and other lawful means from “improper means.” Identify evidence supporting each proposition and record plausible competing explanations rather than presenting an inference as a direct fact.
Map people, accounts, systems, and permissions
Build a custodian and system map for the relevant time period. Include employees, contractors, vendors, shared or service accounts, repositories, collaboration platforms, source-code or design systems, removable media, cloud storage, and relevant backups when they are within the matter’s scope.
- Record access grants, changes, and revocations with their dates and approvers.
- Distinguish a named person from an account, device, or automated process. State what supports attribution and what limits it.
- Note role changes, shared credentials, relevant administrators, and systems that may have logs or document histories.
- Identify retention schedules, deletion routines, and third-party sources that may hold relevant records.
Tailor collection to the dispute’s needs and proportionality. These are practical documentation examples, not a list of sources expressly mandated by Rule 37(e).
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Preserve relevant electronically stored information early
Federal Rule of Civil Procedure 37(e) addresses electronically stored information (ESI) that should have been preserved in anticipation or conduct of litigation, was lost because reasonable steps were not taken, and cannot be restored or replaced through additional discovery. The rule does not require perfect preservation. Its 2015 committee note states: “This rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.”
Make preservation decisions with the actual systems in view
Work with counsel and the relevant IT or records personnel to identify custodians, systems, cloud services, devices, logs, retention settings, and routine deletion processes. Record notices or holds issued, the preservation steps taken, and whether routine deletion was suspended where appropriate. Note collection dates, known gaps, and whether missing information could be restored or replaced.
Potential sources can include communications, audit logs, document histories, download and export records, endpoint data, and records held by third parties. Preserve relevant source material and context where reasonably available. The appropriate collection method depends on the systems, evidence, confidentiality concerns, and proportionality—not on a universal tool or fixed technical checklist.
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Record collection and handling details
For each source, document its owner or administrator, retention schedule, time zone and clock configuration if known, collection method and date, collector, custody transfers, and any filtering, conversion, or export. Keep unaltered source material where feasible; distinguish it from working copies and record transformations so another person can understand how the evidence was handled.
Rule 37(e) does not make every loss of ESI an automatic adverse inference. A court may order measures no greater than necessary to cure prejudice. The severe measures listed in the rule, including an adverse inference or case-ending measures, require a finding that the party acted with intent to deprive another party of the information’s use in litigation.
Build an auditable event chronology
Use one row per event or factual proposition, with links in your own case records to the underlying native source or exhibit. Keep event time, collection time, and any later processing or export distinct. Include the time zone; if the source clock’s configuration is unknown or may be inaccurate, say so rather than silently converting the timestamp.
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- Secret: identifier and version of the information allegedly involved.
- People and systems: relevant person, account, device, role, and source system, with attribution limits.
- Event: date and time with time zone, event type, and file or data identifier.
- Evidence: native record location, collection method, collector, and any transformation or export.
- Legal context: evidence of knowledge, a confidentiality or limited-use duty, notice, or consent where relevant.
- Corroboration and alternatives: supporting and contrary evidence, competing explanations, and unresolved gaps.
- Follow-up: preservation and collection status, plus the exhibit, custodian, or witness needed to authenticate or explain the record.
This chronology is a practical way to connect evidence to the issues; it is not a statutory checklist. Keep a separate gap log for missing logs, short retention windows, clock drift, shared credentials, incomplete attribution, or records that may be recoverable. That makes it easier to assess what further discovery may clarify and to distinguish known facts from inference.
Protect the alleged secret during discovery
Coordinate with counsel on protective-order terms, access tiers, sealing procedures where authorized, redactions, secure transfer, and the handling of unrelated personal, privileged, or third-party information found in a forensic collection. The DTSA’s confidentiality direction does not prescribe one universal protective-order form; applicable rules and the case order govern the procedure.
A DTSA civil seizure application is an extraordinary remedy subject to specific statutory findings and safeguards. It is not a routine substitute for preservation planning or ordinary discovery.
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Choose documentation methods that fit the evidence
Compare collection or documentation approaches against the needs of the case rather than assuming a particular tool is required. The central questions are whether the method captures the relevant evidence, preserves context, and can be explained while controlling cost and exposure of unrelated information.
- Coverage: Which systems, users, dates, and event types are included?
- Attribution: Does the record identify a person, an account, or only a device or process?
- Integrity and reproducibility: Can the collection method and transformations be explained and repeated?
- Retention and recoverability: What may be overwritten, and can missing information be restored or replaced?
- Confidentiality: Can unrelated personal, privileged, or third-party information be protected?
- Proportionality and cost: Is the method adequate in light of the dispute’s importance and the parties’ resources?
Rule 37(e) and its committee note focus on reasonable steps, proportionality, and restoration or replacement. They do not establish a single mandatory technical standard for collecting trade-secret evidence.
Legal framework and limits
This overview uses the DTSA and federal civil discovery rules as a general U.S. baseline, not as advice for a particular dispute. The governing state law, forum, local rules, protective order, discovery agreement, and case-specific facts may affect both the legal elements and the proper handling of evidence. The U.S. Code sources cited for this framework are preliminary text indicating laws in effect during September 2026; verify current statutory and procedural text and applicable case orders with counsel before relying on them in a live matter.
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