§ 134A.006.Preservation of Secrecy

The provision that solves the structural problem of trade secret litigation: proving the secret without destroying it.

Subsection (a): a court shall preserve the secrecy of an alleged trade secret by reasonable means, and there is a presumption in favor of granting protective orders. The section names the tools — limiting access to attorneys and their experts, in camera hearings, sealing the records, and ordering non-disclosure without prior court approval.

Subsection (b) addresses the harder question: can a party be excluded from evidence in their own case?

The starting point is that they cannot — a presumption exists that a party is allowed to participate and assist counsel. But the court may exclude a party or limit access if other countervailing interests overcome the presumption.

Seven factors govern that balance: the value of the alleged secret; the degree of competitive harm from disclosure to the other party; whether the owner alleges the other party already possesses it; whether the party’s representative is a competitive decision maker; the degree to which the defence would be impaired; whether the representative has specialized expertise unavailable to an outside expert; and the stage of the action.

The fourth and fifth factors carry the weight in practice. A defendant’s in-house engineer who competes directly is the paradigm case for exclusion; a defendant who cannot understand the case against them without seeing the material is the paradigm against it.

The seventh factor makes the ruling provisional. Access appropriate at the pleading stage may not be appropriate at trial, and the reverse.