Commentary: Consider the following, relatively uncommon scenario: an employee stole your trade secrets and went to work for a competitor. You know the employee did it, you just cannot prove it. Even with the best forensic analysis it is not always possible to identify, specifically, what an employee took. You need to do something, but what?
You can charge ahead and sue them for trade secret theft and hope you can prove it through discovery. But in many jurisdictions, before you can initiate discovery on such a claim, you must identify the stolen trade secret. If you cannot do so, then not only will you get no discovery but your claim will be dismissed. As a recent Utah Supreme Court case involving an employee who allegedly stole a trade secret illustrates, bringing suit for trade secret theft without sufficient proof can backfire.
