A defendant opposing or challenging an injunction under the Defend Trade Secrets Act (DTSA) often has several potential defenses, including arguing that the information at issue is not truly a trade secret, that the injunction is unnecessary or overbroad, or that the defendant simply “didn’t do it.” One argument that should not make the cut, however, is that the DTSA is unconstitutional.
This advice runs counter to a recent New York University Law Review article suggesting that the ex parte seizure provision of the Defend Trade Secrets Act (DTSA) would not survive due process scrutiny and therefore should be eliminated.
Of the hundreds of claims brought under the DTSA since it went into effect in May 2016, we are unaware of any cases where litigants have attacked its constitutionality, much less successfully. Although the note raises some due process concerns that are not unreasonable in theory, challenging the ex parte seizure provision on a constitutional basis likely would be ineffective in practice. Nor should the concerns expressed in the note require any legislative correction.
First, the note argues that the risk of error is much greater in ex parte seizure applications under the DTSA than in ex parte temporary restraining orders (TROs) under Federal Rule of Civil Procedure 65. The supposed increased risk of error is based on the fact-intensive nature of trade secret litigation, and the purported difficulty in deciding whether a trade secret exists without a counter-narrative.
Many will be surprised to learn that a company may need to advance attorney’s fees to a former director or officer being sued by the company for theft of trade secrets or other misconduct while serving as an officer or director, and to indemnify that director or officer if she or he prevails at the end of the lawsuit. 
The Federal Rules of Civil Procedure were amended in December 2015 to help mitigate the risk of inadvertent disclosure of privileged information present in virtually every litigation. Such risk, however, is particularly acute in litigation involving trade secrets, non-competition, non-solicitation, and/or non-disclosure agreements.
The past two years have marked a seemingly volatile time for non-compete law in the United States, traditionally a state issue. National political forces—the United States Department of the Treasury, the White House, and Senators Al Franken and Chris Murphy—showed an interest in attempting to limit the enforceability of non-competes. We have previously covered this shift 
We’ve previously explained the foolishness of trying to destroy or alter electronically stored information that qualifies as evidence in litigation. Why foolish? Because the attempt implies a belief that such misconduct won’t be detected. When scrutinized by the right experts, the attempt will be detected; when properly presented to a court, it likely will be sanctioned.
Well, that didn’t take long! Not even a full year after President Obama signed the Defend Trade Secrets Act into law on May 11, 2016, Judge Edward G. Smith of the United States District Court for the Eastern District of Pennsylvania entered judgment for plaintiff on the first DTSA claim to be litigated to a jury verdict.
