Who Bears the Burden of Proving Whether Trade Secrets Are Readily Ascertainable?

California trade secrets plaintiffs have to decide whether to bring trade secrets claims under the California Uniform Trade Secrets Act (CUTSA) and/or the federal Defend Trade Secrets Act (DTSA). Under California Code of Civil Procedure Section 2019.210, plaintiffs in trade secrets cases brought in California state courts under CUTSA must identify their trade secrets with “reasonable particularity” before they may commence discovery.  

While some federal district courts in California had applied that California requirement in CUTSA and DTSA cases before them, the Ninth Circuit's 2025 opinion in Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., 149 F.4th 1081 (9th Cir. 2025), clarified that when a plaintiff asserts only a DTSA claim in federal court, the DTSA does not require the plaintiff to identify its trade secrets at the outset of the case with such particularity, although it left open the possibility of district courts exercising their inherent powers to control discovery by, for example, limiting discovery to whether the plaintiff had identified its trade secrets with “sufficient particularity” before permitting additional discovery.

Nevertheless, the Quintara decision may have made it more attractive for trade secret plaintiffs to only bring DTSA claims in federal court, even if they could also bring co-pending CUTSA claims. The Ninth Circuit's recent decision in Comet Technologies USA Inc. et al. v. XP Power LLC, Nos. 23-15601, 23-15709 and 25-745 (9th Cir. July 14, 2026), may scramble that calculus, however, by highlighting the difference on who bears the burden of proving whether trade secrets are readily ascertainable under DTSA and CUTSA claims. According to the Ninth Circuit in Comet, under the DTSA, the plaintiff must prove that its trade secrets are not readily ascertainable, whereas under CUTSA, the defendant must prove that they are. 

So is placing the burden of proving that your trade secrets are readily ascertainable on the defendant worth having to identify your trade secrets with particularity at the outset of the case?

Comet initially brought claims under both the federal Defend Trade Secrets Act and California's trade secret law, but it dropped the state claims during trial to streamline the case. That change proved consequential because the California claims placed the burden on XP to prove that the trade secrets were readily ascertainable, while the DTSA requires the plaintiff to establish that its claimed secrets could not be readily ascertained through proper means.

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