Data on the first year of the Defend Trade Secrets Act

In preparing for the Evil Twin Debate on the DTSA, David Levine (Elon) and Chris Seaman (Washington & Lee) were kind enough to share a draft of their empirical study of cases arising under the first year of the Defend Trade Secrets Act. Now that the article is forthcoming in Wake Forest Law Review and on SSRN, it only makes sense to share their latest draft. Here is the abstract:

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals of creating more robust and efficient litigation vehicles for trade secret misappropriation victims, thereby helping protect valuable American intellectual property assets.

We find that, similar to state trade secrets law, the paradigm misappropriation scenario under the DTSA involves a former employee who absconds with alleged trade secrets to a competitor. Other results, however, raise questions about the new law’s ability to effectively address modern cyberespionage threats, particularly from foreign actors, as well as the purpose (or lack thereof) of trade secret law more broadly. We conclude by discussing our data’s implications for trade secret law and litigation, as well as commenting on the DTSA’s potential impact on the broader issues of cybersecurity and information flow within our innovation ecosystem.

I found this to be an interesting, thorough, and insightful article. I think that the takeaways from the data will differ based on one's views of the DTSA. I suspect my view of the data is different from the view that Levine & Seaman have. Regardless, having the data to work with is immensely useful.

That said, there's still work to be done. The next step for anyone studying this area will be the next layer - looking at the most difficult concerns. For example, one of the most concerning aspect were  seizures; it would be helpful to know a) how often they are sought, b) how often they are granted, and c) what the circumstances were that led to granting. This article gives a good template for how to proceed with followup projects, and I am hopeful that Levine & Seaman keep it going!