Trade secrets are important to cybersecurity because many data breaches involve trade secret theft. The Defend Trade Secrets Act of 2016 (DTSA) amended the Espionage Act of 1996 to provide a federal private right of action for trade secret misappropriation. Some commentators opposed the DTSA in part because it seems redundant in light of state trade secret law and could lead to unnecessary litigation and restrictions on innovation. Now that the DTSA has been in effect for nearly a year. We ran keyword searches in the Bloomberg Law federal docket database to identify cases asserting DTSA claims in federal courts. It is not possible to search only on the Civil Cover Sheet because there is no discrete code for DTSA claims. Our search ran from the effective date of the DTSA (May 26, 2016) through April 21, 2017 (just prior to our symposium on the DTSA at Seton Hall Law School). After de-duping, we identified 280 unique Complaints, which we coded for a variety of descriptive information.


It is interesting to note the decline in filings following the initial uptick after the May 26, 2016 effective date. Perhaps this reflects a slight lull during the summer months. Filings then remained relatively steady until March, 2017, when they increased significantly. This could have something to do with the quarterly business cycle or bonus season, since many of the cases (as discussed below) involve employment issues. Or, it could reflect a random variation given the relatively small sample size. We next examined other claims filed along with the DTSA counts in these Complaints mentioned in the image.
Not surprisingly, nearly all cases included claim for breach of contract, as mentioned Trade claim often arise in the employment context in connection with allegation of breach of a confidentiality agreement to compete. Another findings of note was that a number of was that a fair number of cases asserts computer fraud and abuse act claim, although the number is not as high as expected. Most trade cases today involve exfiltration of electronic information, but perhaps many cases do not involve hacking or other access techniques that could run afoul of the CFAA.
We also noted a smaller but not insignificant number of cases asserting other intellectual property claims, including trademark, copyright and patent infringement. Since many documents taken in alleged trade secret thefts are subject to other forms of intellectual property — particularly copyright — this may show that some lawyers are catching on to the benefit of asserting such claims along with DTSA claims.
Finally, our review of case status revealed the following:
 198 cases in various pre-trial stages
 61 cases dismissed
 5 preliminary injunctions
 4 final judgments, including 2 permanent injunctions
 3 default judgments
 1 case sent to compulsory arbitration
 8 undetermined / miscellaneous
At first blush, the number of cases dismissed seems high, given that none of the cases have been pending for more than a year. We assume the vast majority of these cases settled, though further investigation is required. In contrast, the number of preliminary injunctions granted seems very low. Again, further investigation is required, but so far it does not seem that the DTSA is resulting in the kind of preliminary injunction practice we expected to see under a federal trade secret statute.