Texas IP Law

Guides · Trade Secret Litigation

From Discovery Through Trial

Trade secret cases are proved largely with digital evidence: who accessed what, when, and where it went.

· Law checked through October 20, 2026

In Short

Trade secret cases are proved largely with digital evidence: who accessed what, when, and where it went. Discovery therefore centers on forensic examination of devices and accounts, under protocols that protect privacy and privilege. At trial, Texas juries answer specific questions about each claim, and how those questions are framed is a leading reason large verdicts are reversed.

Common situations.

  • An owner wants a forensic examiner to search a former employee's personal phone and cloud accounts.
  • A defendant's damages expert argues that only one of the claimed secrets had any value.
  • A $700 million verdict is reversed because of the way the jury questions were written.

Discovery.

Forensic examination. In Texas courts, a party is not automatically entitled to direct access to the other side's devices. A court may order it only after showing that the responding party failed to comply with its discovery obligations and that a search is likely to find relevant information, and then under a protocol that protects privacy and privilege, usually carried out by a neutral examiner (In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009)). Federal courts take a similar approach under Rules 26 and 34.

Where the evidence is now. Beyond email and file servers, relevant evidence often sits in:

  • chat and collaboration platforms;
  • personal and company cloud storage;
  • phones and messaging apps;
  • meeting recordings and transcripts;
  • logs of access to code repositories and databases;
  • prompts and outputs in AI tools, if information was pasted into them.

Preservation letters and litigation holds should name these sources specifically. Lost electronic information can lead to sanctions (Fed. R. Civ. P. 37(e); Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)).

Protecting the secrets. Discovery of the owner's secrets proceeds under a protective order, and a party may resist producing its own trade secrets unless they are necessary to a fair adjudication. See Keeping Secrets Secret During the Case.

Experts. Most cases use a forensic expert (what was taken and used), a technical expert (whether the information qualifies and whether the defendant used it), and a damages expert. Damages experts should value each secret, or each group of secrets, separately, because the jury may not find that all of them were misappropriated (Trinseo Eur. GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (5th Cir. Jan. 21, 2026)).

Trial.

The jury charge. Texas courts generally submit claims in broad form, and the State Bar's Texas Pattern Jury Charges include questions and instructions for TUTSA claims. But broad-form submission carries risk: if a single question mixes valid and invalid theories of liability and the court cannot tell which the jury relied on, the error is harmful and requires a new trial (Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000)).

The HouseCanary example. A San Antonio jury awarded HouseCanary about $706 million against a title company. The court of appeals reversed because the misappropriation question allowed liability on a theory of "acquisition by improper means" that the evidence did not support, and because the fraud question mixed a theory displaced by TUTSA with one that was not (Title Source, Inc. v. HouseCanary, Inc., No. 04-19-00044-CV (Tex. App.–San Antonio June 3, 2020)). At the retrial, a jury in the 438th District Court of Bexar County returned a $175 million verdict for HouseCanary on March 6, 2026; the defendant has said it will appeal.

Lessons for the charge:

  • Submit separate questions, or separate instructions, for each theory of misappropriation supported by the evidence.
  • Ask the jury to identify which secrets were misappropriated, so damages can be tied to them.
  • Keep TUTSA questions separate from claims that TUTSA does not displace, such as breach of contract.
  • Exemplary damages require a finding of willful and malicious misappropriation by clear and convincing evidence (Tex. Civ. Prac. & Rem. Code § 134A.004(b)), and a unanimous jury (§ 41.003(d)).

Sources.

  • Tex. Civ. Prac. & Rem. Code §§ 41.003(d), 134A.004(b).
  • Fed. R. Civ. P. 26, 34, 37(e).
  • State Bar of Texas, Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment.
  • In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009).
  • Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014).
  • Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).
  • Title Source, Inc. v. HouseCanary, Inc., No. 04-19-00044-CV (Tex. App.–San Antonio June 3, 2020).
  • HouseCanary, Inc. v. Amrock, LLC, No. 2016-CI-06300 (438th Dist. Ct., Bexar County, verdict Mar. 6, 2026).
  • Trinseo Eur. GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (5th Cir. Jan. 21, 2026).

This guide is general information, not legal advice. Law checked through October 20, 2026. See the Disclaimer.

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