Keeping a Trade Secret Secret During a Lawsuit: Civil Code Section 3426.5

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Civil Code section 3426.5 is the part of California's Uniform Trade Secrets Act that requires a court to preserve the secrecy of an alleged trade secret by reasonable means while a case is litigated. The means it lists are protective orders in discovery, in-camera hearings, sealed records, and orders against disclosure without court approval. (Civ. Code, § 3426.5.) A formula does not have to end up in the public file, but the protection must be requested and justified. Kolmogorov Law, P.C. represents companies in trade secret litigation.

Call (909) 235-6116 or contact us online to discuss how to protect confidential information before a case is filed or answered.

What section 3426.5 requires

In an action under the Act, a court shall preserve the secrecy of an alleged trade secret by reasonable means. The protection applies before anyone has proved that the information is a trade secret.

It is not automatic. The Court of Appeal has held that calling information a trade secret did not oblige a court to seal it. Nearly all of the information in that case had been compiled from public sources and was still available there. There was no secrecy to preserve, so the statute required nothing. (Cypress Semiconductor Corp. v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243, 255.)

Keep the secret out of the complaint

A complaint is ordinarily a public record once it is filed. It should describe the secret by category and by what it does for the business, without disclosing it. The detail belongs in a later document.

California requires the party alleging misappropriation to identify the trade secret with reasonable particularity before commencing discovery relating to it. The statute makes that identification subject to any orders that may be appropriate under section 3426.5. (Code Civ. Proc., § 2019.210.) So a party can ask that the identification be served under a protective order and kept out of the open record. Our page on identifying trade secrets covers what it must contain.

Protective orders in discovery

The plaintiff must show its secret to the company it accuses. The defendant is asked for its own designs, code, or customer data so the two can be compared.

A protective order sets the terms of that exchange. For good cause, a court may order that a trade secret not be disclosed, or be disclosed only to specified persons or only in a specified way. (Code Civ. Proc., § 2031.060, subd. (b)(5).) Our page on protective orders in discovery explains the motion, the usual confidentiality tiers, and the trade secret privilege.

May the accusing company's engineers read the defendant's technical files, or only its outside lawyers and experts? May people who make product decisions see the other side's material at all? How will source code be reviewed? The order should answer each one, and it should be in place before the identification is served.

Sealing what is filed with the court

A discovery protective order does not by itself seal what is filed with the court. In ordinary civil cases, court records are presumed open to the public.

One Court of Appeal decision shows the proof a court may expect. It was not a case under the Act, and the court noted that the mandatory duty in section 3426.5 applies only in actions under the Act. The defendants there claimed that documents filed under a stipulated protective order were trade secrets. The court treated the protection of trade secrets as an interest that can justify sealing. The party asking for it had to prove that the information was in fact a trade secret, and the trial court could reject conclusory declarations. The trial court ordered 25 documents unsealed, and the defendants appealed as to 21. The Court of Appeal affirmed. It found substantial evidence that those 21 were not trade secrets because of their subject matter, because they had already been disclosed, or because the owner had not taken reasonable steps to protect them. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292.)

That decision applied findings the California Supreme Court requires in ordinary civil cases. There must be an overriding interest and a substantial probability that it will be prejudiced without sealing. The order must be narrowly tailored, and no less restrictive means may be available. The Rules of Court restate that test and set the procedure: a motion with a declaration of facts, and the record lodged conditionally under seal until the court rules. (Cal. Rules of Court, rules 2.550, 2.551.) Those rules do not apply to records filed with discovery motions. They apply once the material is used at trial or submitted on a motion that decides something else. In an action under the Act the statute adds its own duty. As the 2015 decision above shows, a label alone still does not require sealing.

So ask for less. A request to seal three pages of a formula, supported by a declaration from someone who knows why it is secret, is easier to justify than a request to seal a whole motion. The work a company did before the dispute counts here too, as our page on reasonable measures to protect trade secrets explains.

Hearings and trial

Section 3426.5 also allows in-camera hearings, which are hearings closed to the public. A court can close the courtroom for the testimony that reveals the secret and keep the rest of the trial open. It can order any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

Raise the plan for exhibits and testimony with the judge well before the first witness.

Federal court

A case under the federal Defend Trade Secrets Act carries a similar rule. The court must enter the orders and take the other action necessary and appropriate to preserve the confidentiality of trade secrets. It may not direct disclosure of information the owner asserts to be a trade secret without first allowing the owner to file a submission under seal describing its interest in confidentiality. (18 U.S.C. § 1835.) Our comparison of the federal and California statutes covers the choice of court.

If a competitor sues your company

Three positions are worth taking early.

• Insist on the plaintiff's identification of its claimed secrets before producing technical material.
• Ask for an attorneys' eyes only tier, and for limits on which of the plaintiff's employees may see your documents.
• Handle the plaintiff's designated material strictly inside your own company. A charge of misuse during the case opens a second dispute.

What to bring to the first meeting

• A plain description of the information and who inside the company has access to it.
• The agreements and policies that protect it.
• The documents you expect to need as evidence, sorted by how sensitive each one is.
• The complaint, discovery requests, or proposed protective order, if a case is already pending.
• The names of the people on each side who would need to see the material.

Frequently asked questions

If we sue over our formula, will it end up in the public court file?

It does not have to. Civil Code section 3426.5 requires a California court to preserve the secrecy of an alleged trade secret by reasonable means, which may include protective orders and sealing. A careful plaintiff keeps the formula out of the complaint, identifies it under a protective order, and files it only with a sealing request supported by evidence.

What is Civil Code section 3426.5?

It is the provision of California's Uniform Trade Secrets Act on secrecy during litigation. It directs the court to preserve the secrecy of an alleged trade secret by reasonable means. Those may include protective orders in discovery, in-camera hearings, sealing the records of the action, and ordering persons involved in the case not to disclose the secret without court approval.

Will the company we are suing get to see our trade secret?

Its lawyers will, and the court decides who else may. California requires the plaintiff to identify the secret with reasonable particularity before taking discovery about it. Civil Code section 3426.5 lets that identification be made under a protective order that limits which people on the other side may read it and what they may do with it.

Our case is going to trial next year. Can the judge close the courtroom when our formula is discussed?

A California court has that power. Civil Code section 3426.5 lists in-camera hearings among the reasonable means of preserving an alleged trade secret, along with sealing records and ordering participants not to disclose it. In ordinary civil cases the California Supreme Court requires any closure to be narrowly tailored, so the request should name the specific testimony and exhibits that reveal the secret.

Does a protective order seal court records automatically?

No. A protective order governs what the parties exchange in discovery. In ordinary civil cases, documents filed with a California court are presumed open. In one appellate case the party that wanted them sealed had to prove the information was a trade secret, and an order unsealing documents was affirmed because that showing was not made.

Talk to a California trade secret attorney

If the risk of exposure is holding up a decision to sue, or a competitor's lawsuit is reaching for your confidential files, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located in Irvine, California. See also our trade secret attorney page.

This page provides general information about California and federal law and is not legal advice. Outcomes depend on the information, the showing made, and the court.