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 [...]

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