IMPLICATIONS OF THE DEFEND TRADE SECRETS ACT has actual possession of — (aa) the trade secret; and (bb) any property to be seized; (VI) the application describes with reasonable particularity the matter to be seized and, to the extent reasonable under the circumstances, identifi es the location where the matter is to be seized; (VII) the person against whom seizure would be ordered, or persons acting in concert with such person, would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person; and (VIII) the applicant has not publi-cized the requested seizure. 19 The DTSA provides protection for whistleblowers who disclose trade secrets. 20 To that end the DTSA requires language (or a cross-reference to such language) similar to the following to be included in confi dentiality agreements with employees, contractors, and consultants and in more general agreements with such entities that contain confi dentiality provisions: Each party acknowledges the limited immunity provided by the Defend Trade Secrets Act for certain disclosures of trade secret information, including disclosures: (a) made (i) in confi dence to a federal, state, or local government offi cial, either directly or indirectly, or to an attorney and (ii) solely for the purpose of report-ing or investigating a suspected violation of law; (b) made in a complaint or other document fi led in a lawsuit or other pro-ceeding, if such fi ling is made under seal; and (c) made by an individual who fi les a lawsuit for retaliation by an employer for reporting a suspected violation of law and discloses the trade secret information to the attorney of the individual and uses the trade secret information in the court proceeding, if the individual (i) fi les any document containing the trade secret under seal and (ii) does not disclose the trade secret except pursuant to court order. 21 Implications for Companies Generally Because it provides a federal civil cause of action to protect trade secrets, the DTSA has favorable implications for companies. The DTSA protects companies that may be victims of trade secret misappropriation, including through physical or cyber theft, by employees, contractors, or consultants. 22 Moreover, the 38 VIRGINIA LAWYER | August 2017 | Vol. 66 | INTELLECTUAL PROPERTY SECTION DTSA favors companies by having expansive defi nitions of trade secrets and misappro-priation and arguably encompassing more types of information than do the UTSA 23 and Virginia’s version of the UTSA. 24 The DTSA covers not only domestic but also international misappropriation if the trade secret is related to a product or service “used in, or intended for use in, interstate or foreign commerce.” 25 To bring a cause of action under the DTSA, companies have three years from the date the misappropriation was discovered or should have been discovered. 26 That period is the same as under Virginia law. 27 Importantly, the DTSA does not preempt trade secret causes of action under state law. 28 Thus, a company can still seek relief in state court although a state-court defendant might be able to have the case removed to federal court under original jurisdiction. 29 The DTSA does not foreclose a company from bringing state claims in a federal case or vice versa. 30 Also, the DTSA provides a cost-effective means of protection for multi-national corpo-rations that may have subsidiaries in various states and are seeking uniform protection. Companies can now strategically evaluate which venue provides them with the best approach to protect their trade secret infor-mation and interests. The DTSA also allows companies to seek immediate relief in federal court, without prior notice to a defendant, through an ex parte civil seizure by the court. 31 This option provides a signifi cant potential advantage, as companies now have the opportunity to seek immediate relief from the dissemination of stolen trade secrets. Although, as discussed above, a court cannot issue a seizure order unless it fi nds certain specifi c facts, 32 the ex parte civil seizure provision exceeds any rights currently available to companies under state trade secret law, including in Virginia. The DTSA’s immunity and whistleblow-er provisions for employees, contractors, and consultants preempt state law 33 and are more protective than either the UTSA 34 and or Virginia’s version of the UTSA. 35 To avoid waiving the exemplary damages or attorneys’ fees available under the DTSA, 36 companies should ensure that their agreements and policies governing the protection of trade secrets comply with the DTSA’s notifi cation requirements. 37 Compliance requires includ-ing the special language identifi ed above in all www.vsb.org