CACI No. 4404. Reasonable Efforts to Protect Secrecy

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
4404.Reasonable Efforts to Protect Secrecy
To establish that the [select short term to describe, e.g., information] [is/
are] [a] trade secret[s], [name of plaintiff] must prove that
[he/she/nonbinary pronoun/it] made reasonable efforts under the
circumstances to keep it secret. “Reasonable efforts” are the efforts that
would be made by a reasonable [person/business] in the same situation
and having the same knowledge and resources as [name of plaintiff],
exercising due care to protect important information of the same kind.
[This requirement applies separately to each item that [name of plaintiff]
claims to be a trade secret.]
In determining whether or not [name of plaintiff] made reasonable efforts
to keep the [e.g., information] secret, you should consider all of the facts
and circumstances. Among the factors you may consider are the
following:
[a. Whether documents or computer files containing the [e.g.,
information] were marked with confidentiality warnings;]
[b. Whether [name of plaintiff] instructed [his/her/nonbinary pronoun/
its] employees to treat the [e.g., information] as confidential;]
[c. Whether [name of plaintiff] restricted access to the [e.g.,
information] to persons who had a business reason to know the
information;]
[d. Whether [name of plaintiff] kept the [e.g., information] in a
restricted or secured area;]
[e. Whether [name of plaintiff] required employees or others with
access to the [e.g., information] to sign confidentiality or
nondisclosure agreements;]
[f. Whether [name of plaintiff] took any action to protect the specific
[e.g., information], or whether it relied on general measures taken
to protect its business information or assets;]
[g. The extent to which any general measures taken by [name of
plaintiff] would prevent the unauthorized disclosure of the [e.g.,
information];]
[h. Whether there were other reasonable measures available to [name
of plaintiff] that [he/she/nonbinary pronoun/it] did not take;]
[i. Specify other factor(s).]
The presence or absence of any one or more of these factors is not
necessarily determinative.
1168
Copyright Judicial Council of California
New December 2007
Directions for Use
Give this instruction with CACI No. 4402, “Trade Secret” Defined, to guide the
jury with regard to element 3 of that instruction, that the plaintiff made reasonable
efforts to keep the information secret. Read only the factors supported by the
evidence in the case. Use factor i to present additional factors.
Sources and Authority
• “Reasonable efforts to maintain secrecy have been held to include advising
employees of the existence of a trade secret, limiting access to a trade secret on
‘need to know basis,’ and controlling plant access. [¶] . . . Requiring employees
to sign confidentiality agreements is a reasonable step to ensure secrecy.” (Whyte
v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1454 [125 Cal.Rptr.2d 277,
internal citations omitted.)
• “A person or entity claiming a trade secret is also required to make ‘efforts that
are reasonable under the circumstances to maintain its secrecy.’ A leading treatise
has collected the cases of successful and unsuccessful claims of secrecy
protection; among the factors repeatedly noted are restricting access and physical
segregation of the information, confidentiality agreements with employees, and
marking documents with warnings or reminders of confidentiality.” (In re
Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 304 [116 Cal.Rptr.2d
833], referring to Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.)
§§ 4.9-4.10.)
• “In addition to possessing actual or potential economic value, the other part of
the definition of a trade secret is that the information must have been protected
by ‘efforts that are reasonable under the circumstances to maintain its secrecy.’
[W]hether a party claiming a trade secret undertook reasonable efforts to
maintain secrecy is a question of fact, and it may be implicit in a determination
that the information does not qualify as a trade secret, also a question of fact.”
(In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 306, internal
citations omitted.)
Secondary Sources
Advising California Employers and Employees (Cont.Ed.Bar) Ch. 11, Reasonable
Effort to Maintain Secrecy, § 11.6
Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.) §§ 4.9-4.10
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, §§ 1.03-1.05 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.52 (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 1.03(4)
TRADE SECRETS CACI No. 4404
1169
Copyright Judicial Council of California

© Judicial Council of California.