Broad Brushes, Fishing Expeditions and Forfeited Claims: A Trade Secret Cautionary Tale
A company that sues former employees for misappropriation of trade secrets should be able to describe with detail what those trade secrets are. Although a refined description may not be in hand when the complaint is filed, it should be prepared without delay so as to be available when the need to specify the substance of the trade secrets arises. The U.S. Court of Appeals for the Eighth Circuit's recent decision in Wilbur-Ellis Company v. Gompert, No. 25-1577, 2026 WL 1957820 (8th Cir. July 7, 2026), stands as a reminder of what happens when a plaintiff is unable or unwilling to clearly identify its purported trade secrets.
Case Background
Wilbur-Ellis Company, a distributor of agricultural products, sued four employees who simultaneously departed to join a competitor, alleging misappropriation of trade secrets under federal and state law, along with related business torts. From the earliest stages of discovery through summary judgment and appeal, the courts repeatedly pointed to the same deficiency: Wilbur-Ellis never clearly identified what trade secrets were allegedly taken.
Its trouble started when the defendants objected to a subpoena directed to their new employer. At a discovery conference, the magistrate judge directed Wilbur-Ellis to first seek discovery from the defendants themselves. When the issue of discovery from the new employer proceeded to motion practice several months later, the magistrate judge denied Wilbur-Ellis' request, finding that its trade secret disclosure did not identify "any specific characteristics of the allegedly misappropriated trade secrets" and should not then be permitted to conduct a "fishing expedition" on the non-party competitor. Id. at *2.
An interesting twist in this case was the aftermath of an order for Wilbur-Ellis to file its list of asserted trade secrets. Normally, a filing of this sort would be sealed as a matter of routine practice as it was here. But when the adequacy of the description was litigated in connection with Wilbur-Ellis' attempt to obtain discovery from the defendants' new employer, the defendants not only challenged the adequacy of the description in the context of justifying the subpoena, but contended that the descriptions were too generic to even meet the standards for sealing. The court agreed and, with the exception of redacting the names of three customers, unsealed the document and included it as an attachment to its decision. Interested readers may peruse the document on the district court's docket or at 2022 WL 17736773, but the descriptions were in the nature of "[d]ocuments and information regarding Wilbur-Ellis's business and market strategy," "[d]ocuments and information relating to Wilbur-Ellis's customers" and "nonpublic customer proposals, pricing and rebate data." Id.
Predictably, with its efforts to obtain discovery from the new employer constrained by its inadequate description of the alleged trade secrets and that very description publicly disclosed on the docket, Wilbur-Ellis soon faced a motion for summary judgment. The district court granted the defendants' motion, writing that Wilbur-Ellis "paint[ed] with a broad brush, never clearly and adequately identifying the 'trade secrets' at issue, let alone how they were used or misused." Its "reliance on broad terms, general descriptions, and repeated, non-specific references" to some 6,000 documents produced in discovery was insufficient to carry its burden of demonstrating the existence of trade secrets, much less misappropriation by the defendants.
On Appeal
On appeal, Wilbur-Ellis contended that "[c]ustomer information, including particular needs and characteristics about the customer, warrant trade secret protection." Id. at *6. But it never explained what specific documents relating to customer information were misappropriated, which defendant allegedly took them or how the information was misappropriated. Similarly, Wilbur-Ellis claimed that two employees "downloaded and accessed files stored on Wilbur-Ellis devices" containing "highly sensitive information regarding Wilbur-Ellis's customers, financial information, and strategy," but it did not specify what files were taken, what efforts it took to maintain their secrecy or how the defendants acquired them using "improper means." Id.
The Eighth Circuit pointedly observed that "because it is not hard to imagine that most documents at Wilbur-Ellis would be related to its 'customers, financial information, [or] strategy,' Wilbur-Ellis fails to rebut the district court's concern that Wilbur-Ellis 'apparently claim[s] that everything [the Employees] encountered in their positions at Wilbur-Ellis was a trade secret.'" Id. Accordingly, the district court's judgment in favor of the defendants was affirmed.
Why This Case Is Interesting
Disputes over the adequacy of trade secret identification are common, but this case is interesting in part because of Wilbur-Ellis' seeming inability to read the writing on the wall and change course by providing an adequate description. By claiming that virtually all information learned by the defendants during their employment were trade secrets, it essentially forfeited the possibility to make a credible argument that anything was a trade secret. Here, both the district court and the court of appeals remarked on this overreach. A trade secret must be something specific that has independent economic value from not being generally known – not a catchall designation applied to an employee's entire body of work experience. Stated differently, claiming "everything is a trade secret" risks a court finding that nothing is.
Another interesting aspect of this case was discussion in the Eighth Circuit's published decision of Wilbur-Ellis' procedural missteps, necessary because it challenged the district court's discovery orders as part of its appeal. Its unforced errors included failure to abide by the magistrate judge's procedural requirements for presenting discovery disputes and improperly presenting a request to hold the defendants' summary judgment motion in abeyance pending further discovery. The Eighth Circuit noted in this regard that Wilbur-Ellis' inability to obtain discovery was "largely its own doing." Id. at *5.
The Wilbur-Ellis decision is a stark reminder that trade secrets litigation requires precision – in identifying the secrets, in pursuing discovery and in connecting specific evidence to specific claims against specific defendants. A broad brush may work to paint a barn but not to illustrate a winning trade secrets case.