Keeping Secrets Secret During the Case

Common situations.

• An owner must describe its secret formula in a court filing.
• A defendant wants its in-house engineer to see the plaintiff's alleged secrets to help with the defense.
• A news organization asks the court to unseal trial exhibits.

Protective orders in discovery.

Texas courts. A court must preserve the secrecy of an alleged trade secret by reasonable means, and there is a presumption in favor of granting protective orders for that purpose (Tex. Civ. Prac. & Rem. Code § 134A.006(a)). Protective orders usually create tiers of confidentiality, such as "confidential" and "attorneys' eyes only."

Participation by the parties. There is also a presumption that each party may participate in the case and assist its lawyers. A court may limit a party's or its representative's access to the other side's alleged trade secrets only if countervailing interests overcome that presumption, after weighing statutory factors that include the value of the secret, the degree of competitive harm from disclosure, and the stage of the case (§ 134A.006(b)). The 2017 amendment codified the balancing test of In re M-I L.L.C., 505 S.W.3d 569 (Tex. 2016).

Discovery of the other side's secrets. A party may refuse to disclose its own trade secrets in discovery unless the requesting party shows the information is necessary for a fair adjudication of its claims or defenses (Tex. R. Evid. 507; In re Continental Gen. Tire, Inc., 979 S.W.2d 609 (Tex. 1998); In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003)).

Federal courts. Protective orders issue for good cause (Fed. R. Civ. P. 26(c)(1)(G)). In DTSA cases, the court must enter orders necessary to preserve the confidentiality of trade secrets, and may not authorize disclosure of information the owner claims is a trade secret unless the owner has had a chance to file a sealed submission describing its interest in keeping the information confidential (18 U.S.C. § 1835).

Sealing court records in Texas.

Before September 1, 2025. Texas Rule of Civil Procedure 76a presumes court records are open and sets a notice-and-hearing procedure for sealing. In HouseCanary, Inc. v. Title Source, Inc., No. 19-0673 (Tex. Apr. 30, 2021), the Texas Supreme Court held that TUTSA's presumption in favor of protecting trade secrets displaces Rule 76a's presumption of openness, but Rule 76a's procedures still apply. It also held that admitting exhibits and discussing them in open court does not by itself establish that trade secret protection was lost.

Since September 1, 2025: the § 134A.0065 procedure. For actions under TUTSA, H.B. 4081 created a separate sealing process (Tex. Civ. Prac. & Rem. Code § 134A.0065):

1. Filing your own trade secret. A party files a notice of sealing and an affidavit describing the information and the factual basis for treating it as a trade secret, delivers the document to the court in a sealed envelope, and serves it on the other parties.
2. Filing someone else's trade secret. A party that knows a document contains another person's alleged trade secret files it the same way and notifies that person, who has 14 days to file a supporting affidavit. If no affidavit is filed, the document becomes public.
3. Sealed until challenged. A qualifying document is treated as filed under seal, and the court keeps continuing jurisdiction to seal or unseal. Any person may intervene to seek sealing or unsealing.
4. Motion to unseal. Any person may move to unseal, with at least 14 days' notice of the hearing. The court must unseal unless the claimant proves by a preponderance of the evidence that the document contains a trade secret, and must redact rather than unseal entirely when only part is secret.
5. Immediate appeal. An order granting or denying a motion to unseal is treated as a severed final judgment that any participant in the hearing may appeal (§ 134A.0065(j)).

The Texas Supreme Court may not adopt rules that conflict with this section (§ 134A.0065(k)). The procedure applies only in Texas courts, not to DTSA claims in federal court.

Business Court. The Business Court's local rules tell parties not to file unredacted trade secrets or other confidential information unless they are willing for it to become public, and to redact confidential material not critical to a filing (Tex. Bus. Ct. Local R. 9, effective Apr. 1, 2026).

Sealing in federal court.

The Fifth Circuit applies a strong presumption that judicial records are open. A protective order governing discovery does not by itself justify sealing documents filed with the court. A court must weigh the public's right of access against the interests favoring secrecy, document by document and line by line, and explain its reasons (Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410 (5th Cir. 2021); June Med. Servs., L.L.C. v. Phillips, 22 F.4th 512 (5th Cir. 2022)). Genuine trade secrets can still be sealed, but blanket sealing by agreement of the parties will not be approved.

Practical steps.

• Describe the secrets with enough specificity for the case, but put the details in a sealed exhibit and refer to them by code names in public filings.
• Negotiate the protective order early, including who may see attorneys'-eyes-only material and how experts are approved.
• Plan for trial: ask in advance for procedures to close the courtroom during testimony about the secrets and to seal or redact exhibits and transcripts.

Sources.

• Tex. Civ. Prac. & Rem. Code §§ 134A.006, 134A.0065.
• H.B. 4081, 89th Leg., R.S. (2025); H.B. 1995, 85th Leg., R.S. (2017).
• Tex. R. Civ. P. 76a; Tex. R. Evid. 507.
• Tex. Bus. Ct. Local R. 9 (effective Apr. 1, 2026).
• Fed. R. Civ. P. 26(c).
• 18 U.S.C. § 1835.
• In re M-I L.L.C., 505 S.W.3d 569 (Tex. 2016).
• In re Continental Gen. Tire, Inc., 979 S.W.2d 609 (Tex. 1998).
• In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003).
• HouseCanary, Inc. v. Title Source, Inc., No. 19-0673 (Tex. Apr. 30, 2021).
• Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410 (5th Cir. 2021).
• June Med. Servs., L.L.C. v. Phillips, 22 F.4th 512 (5th Cir. 2022).

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