4404. Reasonable Efforts to Protect Secrecy

To establish that the [select short term to describe, e.g., information] [is/ are] [a] trade secret[s], [name of plaintiff] must prove that [he/she/it] made reasonable efforts under the circumstances to keep it secret.
“Reasonable efforts” are the efforts that would be made by a reasonable [person/business] in the same situation and having the same knowledge and resources as [name of plaintiff], exercising due care to protect important information of the same kind. [This requirement applies separately to each item that [name of plaintiff] claims to be a trade secret.] In determining whether or not [name of plaintiff] made reasonable efforts to keep the [e.g., information] secret, you should consider all of the facts and circumstances. Among the factors you may consider are the following:
[a. Whether documents or computer files containing the [e.g., information] were marked with confidentiality warnings;] [b. Whether [name of plaintiff] instructed [his/her/its] employees to treat the [e.g., information] as confidential;] [c. Whether [name of plaintiff] restricted access to the [e.g., information] to persons who had a business reason to know the information;] [d. Whether [name of plaintiff] kept the [e.g., information] in a restricted or secured area;] [e. Whether [name of plaintiff] required employees or others with access to the [e.g., information] to sign confidentiality or nondisclosure agreements;] [f. Whether [name of plaintiff] took any action to protect the specific [e.g., information], or whether it relied on general measures taken to protect its business information or assets;] [g. The extent to which any general measures taken by [name of plaintiff] would prevent the unauthorized disclosure of the [e.g., information];] [h. Whether there were other reasonable measures available to [name of plaintiff] that [he/she/it] did not take;] [i. Specify other factor(s).] The presence or absence of any one or more of these factors is not necessarily determinative.

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