The new DTSA Act may require you to update your NDA agreements used with employees.

1. Update your NDA
to include the new
Trade Secrets Act

2. To qualify as a trade secret, the information must be kept confidential from
the public, provide inherent commercial advantage to the owner due to its
secrecy and the owner must take reasonable steps to protect the secret.
Any confidential information that qualifies as a trade secret receives protection
under common law and most US state law that have adopted the Uniform
Trade Secret Act (UTSA).
UTSA
http://www.uniformlaws.org/shared/docs/trade%20secrets/utsa_final_85.pdf

3. Defend Trade Secrets Act 2016
(DTSA)

4. DTSA will enable applicants to file a civil suit for protection of their trade secrets
under federal law besides the UTSA and common law.
DTSA is not going to pre-empt the UTSA. This means that applicants still have the
choice of whether to sue under the UTSA or under the new DTSA.
The DTSA will also provide for extra monetary damages and injunctive relief in-
cluding the ability to apply for "ex parte" property seizures for wrongful use of trade
secrets without notice to the offending party.

5. Misappropriation of
Trade Secret

6. 19 "(5) the terra 'misappropriation' means-
20 "(A) acquisition of a trade secret of an-
21 other by a person who knows or has reason to
22 (know that the trade secret was acquired by im-
23 proper means; or

7. 1 "(B) disclosure or use of a trade secret of
2 another without ex-press or implied consent by
3 a person who-
4 "(i) used improper means to acquire
5 knowledge of the trade secret;
6 "(ii) at the time of disclosure or use,
7 knew or had reason to know that the
8 knowledge of the trade secret was-
9 "(I) derived from or through a
10 person who had used improper means
11 to acquire the trade secret;
12 "(II) acquired under cir-
13 cumstances giving rise to a duty to
14 maintain the secrecy of the trade se-
15 era or limit the use of the trade se-
16 cret; or

8. 17 (III) derived from or through a
18 person who owed a duty to the person
19 seeking relief to maintain the secrecy
20 of the trade secret or limit the law of
21 the trade sceret; or
22 "(iii) before a material change of the
23 position of the person, knew or had reason
24 to know that-

9. 1 "(I) the trade secret was a trade
2 secret; and
3 "(II) knowledge of the trade se-
4 eret had been acquired by accident or
5 mistake;

10. Ex parte order
"Ex parte" is a Latin term that refers to an application by and for the benefit of one party. An ex parte
order then basically refers to an order that is granted by the court, without notice to the other party.

11. If the other party was found to be guilty of misappropriation, one of
the biggest changes under the DTSA is the introduction of the right
to apply for an ex parte order to seize property in “extraordinary
circumstances” in order to “prevent the propagation or dissemina-
tion of the trade secret that is the subject of the action.”
There's also a required immunity provision in the DTSA that protects
whistleblowing employees from any civil or criminal lawsuit if
they were to disclose trade secrets in relation to the reporting of a vi-
olation of the law to a government official or attorney.

12. Differences between
UTSA and DTSA

13. Summary of the main practical differences
● The definition of what constitutes a trade secret under the DTSA is likely to
be broader than under the UTSA.
● Under the DTSA, you can file a claim in the federal court instead of relying
only on state law or common law.
● The DTSA allows you to apply for an ex parte seizure order if you fulfil
certain requirements and this can be highly effective in stopping any damag-
ing publications or misuse.
● The DTSA awards up to three times the damages suffered compared to
the UTSA that only awards up to two times the damages suffered.
● The DTSA expressly protects whistleblowing employees including con
tractors and consultants if a disclosure was made to a government official
or attorney for the purpose of reporting a legal violation.
● The statute of limitation for an application for UTSA is three years while it
is five years under the DTSA.

14. 8 "(b) IMMUNITY FROM LIABILITY FOR CONFIDENTIAL
9 DISCLOSURE OF A TRADE SECRET TO T. GOVERN-
MENT
10 OR IN A COURT FILING.-
11 "(1) IMMUNITY.—As individual shall not be
12 held criminally or civilly liable muter any Federal or
13 State trade secret law for the disclosure of a trade
14 secret that-
15 "(A) is made-
16 "(i) in confidence to a Federal, State,
17 or local government official, either directly
18 or indirectly, or to an attorney; and
19 "(ii) solely for the purpose of report-
20 ing or investigating a suspected violation of
21 law; or
22 "(B) is made in a complaint or other doeu-
23 ment filed in a lawsuit or other proceeding, if
24 such filing is made under seal.

15. 1 "(2) USE OF TRADE SECRET INFORMA-
TION IN
2 ANTI-RETALIATION LAWSUIT- An individual
who
3 files a lawsuit for retaliation by an employer
for re-
4 porting a suspected violation of law may dis-
close the
5 trade secret to the attorney of the individual
and use
6 the trade secret information in the court pro-
ceeding,
7 if the individual-
8 "(A) files any document containing the
9 trade secret under seal; and
10 "(B) does not disclose the trade secret, ex-
11 cept pursuant to court order.

16. Example of an actual provision that you could use in your non-disclosure agree-
ments from Latham & Watkins LLP (https://www.lw.com/)
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the
disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to
an attorney solely for the purpose of repotting or investigating a suspected violation of law. An individual
shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a
trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, If such
filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a
suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade
secret information in the court proceeding, if the individual files any document containing the trade secret
under seal; and does not disclose the trade secret, except pursuant to court order.

17. https://everynda.com/blog/update-nda-dtsa-trade-secrets-act/