Trade secrets are defined in California Civil Code section 3426.1 (d) as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

In simple terms, a trade secret is a valuable piece of intellectual property that the owner has developed and desires to protect. A trade secret can be as simple as a customer list developed for a certain industry. If an employee or competitor were to take that customer list without consent and then use it for financial gain, then that would be a trade secret misappropriation.

In the family case scenario for example, attorneys will request a protective order before it “hands’ over to a forensic and the opposing attorney business information/documents. However, requesting a protective order requires the moving party to be able to meet their burden of proof (CCP 2031.060).

“When an inspection, copying, testing, or sampling of documents, tangible things, places or electronically stored information has been demanded, the party to whom the demand has been directed, any other party or affected person, may promptly move for a protective order This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

If the party meets its burden of proof, “the court, for good cause show, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (CCP 2031.060 (b)(1)(6).

However, the court must find that the requesting party has met his/her burden of showing good cause to issue a protective order pursuant to CCP 2031.060. The family court may find the documents are directly relevant to the issues presented in the dissolution of marriage case. For example, a party’s cash flow available for support and assets.

Moreover, the court may find that the state’s interest in discovering the truth outweighs the party’s privacy interest in his/her business financial documents and the court could find the production of documents to be necessary in achieving a compelling state interest.

The two interests that the court must weigh in deciding whether a protective order must be issued are critical factors. Whether you represent the party requesting one or against the protective order, a well-drafted and argued analysis of both factors must be presented to the court. In doing so, an experienced litigator is needed.

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