Civil Seizure Under the DTSA

Historically, actions for misappropriation of trade secrets resided almost exclusively in individual state law.  Since 1988, Florida has enjoyed quite robust trade secret protection by making it unlawful to misappropriate information that derives independent economic value from the fact that it is not readily known in the marketplace provided that the information: (a) cannot be discovered through proper means; and (b) is subject to reasonable efforts to maintain its secrecy (“Florida Act”).  The recent enactment of the DTSA provides a private right of action to litigants for the misappropriation of trade secrets by allowing trade secret owners to maintain suit in federal court.  The DTSA is not remarkably different from the Florida Act with a few exceptions.  The most significant exceptions are the immunity notice requirements (see ‘What Employers Need to Know About the Defend Trade Secrets Act’ by Colleen Flynn) and the right to seek a civil seizure order (without notice to the persons who misappropriated the trade secrets) to forcibly obtain property on which the misappropriated trade secret resides if such a remedy is necessary to prevent the propagation or dissemination of the trade secret.  The civil seizure order is an extraordinary remedy requiring the person or entity seeking that order to present facts satisfying stringent statutory requirements.   Due to its infancy, this area of the Federal Act has yet to be the subject of any reported court decision, but will most likely be a hotly contested topic as the jurisprudence evolves.

Zachary D. Messa is a Florida Bar Certified Intellectual Property Attorney