April 30, 2026 The Rise of Trade Secret Litigation

Are you prepared to stop your trade secrets from walking out the door?

By Chaz Billington, George Stevens, and Aaron Williams

Recent years have seen a historic surge in trade secret litigation, with more than 1,550 cases filed in federal courts across the United States in 2025 alone. This trend underscores a critical reality: confidential, proprietary, and trade secret information often walks out an employer’s door without warning—leaving costly, damaging litigating in its wake. This article sets out best practices and provides actional guidance regarding trade secret governance and practical strategies for protecting your business from becoming one of those statistics.

Governance Requires Thoughtful Definition

A trade secret is any information that provides economic advantage to its owner by virtue of not being generally known to the public. While confidential and proprietary information may overlap with trade secrets and should also be defined and protected, they are not always the same under the law. Regardless, all are vulnerable to misappropriation and deserve careful attention—and that is where a strong governance program comes in.

The first and possibly most important step in such a program is clearly defining trade secret information in an employer’s possession (and, by extension, clearly defining what other protectable information exists). This requires specificity. The Federal Circuit has emphasized that trade secrets must be defined with enough particularity for a court to understand how they differ from information readily available to the public. Consider, for example, the recipe for Coca-Cola®: the ingredient list is public, but the specific recipe—the measurements, ratios, branded ingredients, and process steps—is the secret. This specificity allows a court to compare the Coca-Cola® recipe to what is generally known and determine whether it is truly unique from a competitor’s cola recipe that contains the same or nearly identical ingredients.

In short, employers should ask: (1) what information do we have or have we created; (2) is it different than what is generally known to the public and, if so, how; and (3) what is the best way to capture or articulate that difference?  Employers should document the answers to these questions to create a portfolio it can refer to as needed.

Protection Requires Proactive Steps

Having defined trade secret (and other confidential and proprietary) information, employers should take proactive steps to protect it. This should include: limiting access to such information to employees who need it; implementing systems to track who accesses such information and when; and deploying—as well as enforcing—robust confidentiality and non-disclosure agreements aimed at that information. Not only do these steps provide protection, but their very existence can deter bad actors from attempts at theft.

Yet attempts at exfiltration cannot entirely be prevented. Most of these attempts will be electronic in nature: emailing documents to personal addresses; uploading files to non-company cloud applications; or copying data to external drives. And most of these attempts will occur in the narrow window between when an employee is interviewing for a new job and their last day with access to company systems. To detect these attempts, employers should implement automated systems that flag these kinds of suspicious behavior and alert information security personnel in real time.

Prosecution Requires Preservation

Trade secrets cases are won or lost on available evidence, which can be hindered by employees deleting emails or wiping devices to cover their tracks. Having a robust, uniformly applied policy to preserve potential sources of evidence for all departing employees is critical. This should include, at minimum, preserving all departing employees’ email folders, system user accounts, and devices for a period of time following any departure. This provides a repository of potential evidence should suspicion about a specific employee’s activities arise.

If that suspicion does arise, swift action is essential. An affected employer should place the preserved email folders and user accounts on an indefinite hold to ensure nothing is lost to the passage of time. The employer should also pull preserved devices before they are wiped and put back into circulation and have them forensically imaged. From there, the employer should work with legal and information security professionals to search for evidence of exfiltration—or, failing that, evidence of deletion that would suggest exfiltration occurred.

Conclusion

Trade secret governance is not a one-time exercise. It’s a journey, not a destination. Employers should routinely verify compliance with policies and procedures and review the efficacy of the proactive measures implemented to protect information. This should include taking steps to identify new trade secrets as the employer’s business evolves, defining them with specificity, securing and monitoring them proactively, and ensuring critical evidence is preserved.

By making trade secret protection a routine part of business operations, employers not only safeguard valuable assets but also foster a culture of vigilance and accountability that benefits the entire organization. Perhaps most importantly, following these best practices can best position your business to avoid costly litigation and maintain your competitive edge.

About the Authors:
Chaz Billington, George Stevens and Aaron Williams are partners at Vorys, a full-service business law firm. Billington and Stevens focus their practices on employment law and Williams focuses his practice on intellectual property. 

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