Insight
Comet v. XP Power and the Burden on Ascertainability
Under the federal trade secret statute, the plaintiff must prove its information was not readily ascertainable. A jury instruction that said otherwise cost the plaintiff its verdict.
Law checked through
On July 14, 2026, the Ninth Circuit vacated a trade secret judgment that included $20 million in compensatory damages, $20 million in punitive damages, a permanent injunction and more than $17 million in fees, because the district court instructed the jury that the defendant bore the burden of proving the information was readily ascertainable. Under the Defend Trade Secrets Act, the court held, that burden belongs to the plaintiff as part of proving a trade secret exists.
Comet is a DTSA burden-of-proof case, not an AI case. It did not find that an AI tool made a secret readily ascertainable. In an AI reconstruction dispute, the party advancing that theory needs evidence of lawful inputs, reproducibility and the effort required. The opinion does not supply that evidence or establish that every AI-surfaceable fact is public.
The Ninth Circuit decision is persuasive, not binding, in Texas. It addresses the DTSA definition and jury instruction; it does not decide the allocation of every TUTSA issue. Texas claimants should distinguish statutory elements, the information identified and the circuit whose law governs.