Establishing That a Trade Secret Exists
An enforcement action rises or falls on the threshold question of whether a protectable trade secret exists. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 49, 738 P.2d 665 (1987). The employer must prove the information (a) derives independent economic value from not being generally known or readily ascertainable, and (b) is the subject of efforts reasonable under the circumstances to maintain secrecy. RCW 19.108.010(4).
The reasonable efforts element is where employers most often fail, and it is largely within the employer's control before any departure occurs. Steps Washington courts have credited as "reasonable" include advising employees of the existence of a trade secret, limiting access on a need-to-know basis, and controlling facility access. Machen, Inc. v. Aircraft Design, Inc., 65 Wn. App. 319, 327, 828 P.2d 73 (1992), overruled on other grounds by Waterjet Technology, Inc. v. Flow International Corp., 140 Wn.2d 313, 996 P.2d 598 (2000). Conversely, allowing information to become public through display, publication, advertising, or carelessness defeats protection. Woo v. Fireman's Fund Insurance Co., 137 Wn. App. 480, 490, 154 P.3d 236 (2007).
Identifying the Trade Secret with Particularity
An employer bringing suit must be able to say, specifically, what its trade secrets are. Washington state courts require declarations and affidavits providing specific, concrete examples that the information meets the statutory requirements. Belo Management Services, Inc. v. Click! Network, 184 Wn. App. 649, 657, 340 P.3d 236 (2014). A vague description of a product without identifying the components claimed as secret is insufficient. This is not a mere pleading formality: in Zunum Aero, Inc. v. Boeing Co., No. 2:21-cv-00896-JLR (W.D. Wash.), the district court set aside a jury verdict exceeding $80 million on the ground that the trade secrets had been described only in "vague and amorphous" terms — a ruling the Ninth Circuit later reversed on appeal (unpublished, Aug. 14, 2025), but only after years of litigation turned on the adequacy of identification. The lesson for an enforcing employer is to invest early in a precise, itemized identification of the asserted secrets.
Customer Lists and Memorized Information
The misappropriation of customer information is the most common basis for a trade secret case in Washington. In Ed Nowogroski Insurance, Inc. v. Rucker, 137 Wn.2d 427, 971 P.2d 936 (1999), the Washington Supreme Court addressed trade secret act claims brought against a departing salesperson. There, the court applied a three-part test to determine whether the customer list qualified as a trade secret — whether the list is a compilation of information, whether it is valuable because unknown to others, and whether the owner made reasonable efforts to keep it secret, 137 Wn.2d at 442 — and it extended protection to information the employee holds only in memory, id. at 440–41. The claim was therefore not defeated by the fact that the departing employee took no documents.
Remedies Available to the Former Employer
Employers demonstrating that misappropriation of trade secrets has occurred are entitled to a number of remedies:
- Injunctive relief. Actual or threatened misappropriation may be enjoined. RCW 19.108.020(1). But WUTSA does not displace Washington's general equitable prerequisites: the employer must show a clear legal or equitable right (i.e., likelihood of success on the merits), a well-grounded fear of immediate invasion, and actual and substantial (non-speculative) injury. Tyler Pipe Industries, Inc. v. Department of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982); Kucera v. Department of Transportation, 140 Wn.2d 200, 209, 995 P.2d 63 (2000). An injunction may be continued for a reasonable additional period to eliminate the commercial advantage derived from the misappropriation — the basis for a head-start injunction. RCW 19.108.020(1).
- Compensatory damages. Actual loss plus unjust enrichment not captured in the loss figure. RCW 19.108.030(1). On an unjust-enrichment theory, the employer's initial burden is to prove sales attributable to the trade secret; the burden then shifts to the defendant to prove any portion not so attributable and any deductible expenses. ADA Motors, Inc. v. Butler, 7 Wn. App. 2d 53, 63, 432 P.3d 445 (2018).
- Exemplary damages up to twice the compensatory award for wilful and malicious misappropriation. RCW 19.108.030(2).
- Attorney's fees where wilful and malicious misappropriation exists. RCW 19.108.040.
Protecting Secrecy During the Lawsuit
The paradox of trade secret enforcement is that suing requires disclosure. The court is statutorily obligated to preserve secrecy by reasonable means, including protective orders, in camera hearings, and sealing. RCW 19.108.050. But Washington draws a hard line between unfiled discovery and filed court records: discovery materials may be protected on a "good cause" showing under CR 26(c), whereas sealing anything filed with the court requires satisfying the five-factor constitutional test of Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), and GR 15. A stipulated protective order does not, by itself, justify sealing a filed record. Dreiling v. Jain, 151 Wn.2d 900, 917, 93 P.3d 861 (2004). An enforcing employer must plan to brief Ishikawa affirmatively and to avoid filing secret material where a summary or category description will do.
Preservation and Forensics
Departing-employee cases are won and lost on device and cloud forensics. The employer should preserve the departing employee's laptop, email, and access logs before reimaging or reissuing the device — reimaging a departed employee's machine before preserving it forfeits the best evidence and invites an adverse-inference argument against the employer itself. The litigation-hold obligation attaches when misappropriation is reasonably anticipated.
What the Loss of Noncompetes Means for the Employer
With noncompetition covenants void as of June 30, 2027, an employer can no longer prevent a key employee from joining a competitor outright. Its protectable interest in sensitive information must instead be secured through (i) confidentiality and invention-assignment agreements, (ii) a permissible nonsolicitation covenant (18-month maximum), and (iii) trade secret enforcement under WUTSA or the DTSA. Because Rucker protects even memorized customer information, trade secret law will carry substantially more of the load than before. Employers should audit their agreements now, strengthen confidentiality and invention-assignment provisions, and ensure their secrecy measures are robust enough to satisfy the "reasonable efforts" element.