The University of Pennsylvania Law Review’s PENNumbra published an essay by discussing whether, in the thirty years since the creation of the Uniform Trade Secrets Act (UTSA), courts actually look to sister states in interpreting the law. See Michael Risch, Essay, A Failure of Uniform Laws?, 159 U. PA. L. REV. PENNUMBRA 1(2010).   The author focuses on West Virginia as a test case because of the jurisdiction’s complete absence of state court trade secret case law, both before and after passage of the UTSA.

The author concludes that “the UTSA fails the test of uniformity because it is not being used as a source of case law precedent. Instead, older common law is being used.”  Even West Virginia federal courts have looked to outside precedent based on the Restatement (Second) of Torts, rather than the UTSA:

The West Virginia experience implies that the UTSA fails as a uniform source of precedent for sister states that adopt it. When faced with a lack of home-state-court guidance, West Virginia federal courts look to out-of-state precedent based on the Restatement (Second) of Torts, the primary source of trade secret common law. Indeed, when faced with collateral trade secret questions, such as litigation discovery protective orders, West Virginia’s own Supreme Court also looked to non-UTSA precedent.

By CHARLES JUNG