If you believe that a former employee may have taken your trade secrets on his way out the door and you are considering court action to rectify the situation, it is important to have compelling evidence of the misappropriation. But as we discuss in this post, even with compelling evidence of misappropriation, the plaintiff’s failure to have taken “reasonable efforts” to maintain the secrecy of trade secret information may defeat the misappropriation claim.
Let’s review the following set of facts as an example:
An employee has left your company to work for a direct competitor. At that direct competitor, he does the same job he did while working for you. At his new company, he is attempting to contact some of your customers. When he left your company, he did not return his company-issued laptop or iPad. A forensic examination of those devices reveals that after he received a letter from you demanding the return of them, he opened 20 files that you contend contain highly confidential and proprietary information. That same analysis demonstrates that he connected more than 20 flash drives to the laptop after his employment was terminated. Indeed, on the day he returned the computer to you he connected six flash drives to it. He also emailed to his new colleagues a high-level competitive analysis of your company.…