The Sedona Conference published the first comprehensive draft Model Jury Instructions for the Defend Trade Secrets Act of 2016 (DTSA) and invites public comment through January 17, 2026. The draft instructions, which have been three years in development, aim to provide clear, consensus-driven guidance on the key issues that juries must resolve in DTSA cases, against the backdrop of an evolving and often inconsistent body of federal trade secret law.
Background
Although the DTSA has been in effect since 2016, federal courts are only now beginning to generate a meaningful body of appellate decisions interpreting the statute, largely because of the slowdown in trial activity during the COVID-19 pandemic. According to the Sedona Conference’s announcement, more than 9,600 federal trade secret cases were filed between 2017 and 2022, but only about 300 reached a jury verdict in that period. This emerging landscape has underscored the need for model jury instructions that can guide courts and litigants in identifying, framing, and presenting DTSA issues at trial.
The draft instructions were prepared by members of the Sedona Conference Working Group 12 on Trade Secrets, a group dedicated to developing nonpartisan, consensus-based principles for managing trade secret litigation. As described in the commentary, the working group has published influential guidance on governance of trade secrets, clean room practices, and interorganizational sharing of confidential information.
Overview of the draft instructions
The Model Jury Instructions consist of core DTSA concepts and follow a familiar model instruction format, pairing proposed instructions with supporting authority and explanatory commentary. As summarized in the one-page publication outline, the instructions cover an introduction to DTSA claims, the elements of misappropriation, existence of a trade secret, misappropriation theories, and damages.
Key issues highlighted in the draft
Identifying trade secrets with “sufficient particularity”
Recent cases suggest that in some circumstances, the jury may need to decide whether the asserted trade secrets have been identified with sufficient specificity, although most practitioners agree that courts should police this issue before trial. This specificity requirement reflects a growing tension between early disclosure obligations and strategic concerns about revealing sensitive information.
What constitutes “reasonable measures”?
Whether a plaintiff took “reasonable measures” to maintain secrecy remains a fact-intensive inquiry. The commentary notes emerging case law holding that general confidentiality policies, cybersecurity protections, or “need to know” restrictions may be insufficient if not specifically tied to the trade secrets at issue. At least one court has suggested that failing to affirmatively tell an employee that a piece of proprietary information (such as source code) is a trade secret may defeat DTSA protection.
Combination trade secrets and proof of misappropriation
The draft rejects a patent-style “all-elements” test and instead endorses assessing substantial similarity between the combination trade secret and the accused method or system. This recommendation reflects a shift away from rigid element-by-element comparisons toward more flexible, fact-driven analyses.
Whether retention alone can constitute misappropriation
One unresolved issue is whether mere retention of trade secret information (once lawfully acquired) can qualify as improper acquisition under the DTSA. The commentary notes a lack of consensus and cautions practitioners to be aware of jurisdictional variation.
Damages: Extraterritoriality, burdens of proof, and apportionment
The draft instructions underscore that damages under the DTSA remain one of the most unsettled areas of trade secret law, with courts diverging on multiple foundational questions. A key issue is the statute’s extraterritorial reach. Following the US Court of Appeals for the Seventh Circuit’s 2024 Motorola v. Hytera decision, a plaintiff may recover for foreign conduct if at least one act “in furtherance” of the misappropriation occurred in the United States, but what constitutes such an act is a highly fact-specific and still-developing inquiry.
The draft also highlights uncertainty surrounding unjust enrichment damages, including whether the judge or the jury should decide them – an issue that has led many courts to submit the question to juries while acknowledging that the law is unsettled. Courts also disagree on the burdens of proof for disgorgement, with some requiring plaintiffs to prove only the defendant’s sales before shifting the burden to the defendant to prove profits while others require plaintiffs to attempt to show profits attributable to the misappropriation.
The commentary notes that the law has not yet converged on a clear standard for apportionment, particularly where a defendant’s product incorporates multiple trade secrets or significant non-secret technology. The open question is whether plaintiffs must disaggregate the value contributed by each asserted secret or whether they may instead seek recovery tied to the overall value of the resulting product or system.
Collectively, these uncertainties reflect the DTSA’s relative newness and signal that damages will continue to be a fertile ground for litigation strategy and doctrinal development.
Practice note: These draft instructions offer courts and practitioners a much-needed framework for navigating DTSA claims and are likely to influence judicial practice even before a final version is adopted. Litigators should pay particular attention to the commentary on particularity, reasonable measures, and combination trade secrets, as these issues continue to generate significant motion practice and divergent results in federal courts.
