The recent article from Today’s General Counsel magazine, Defendants’ Stratagems and Plaintiffs’ Counters in Trade Secret Litigation, reminds us all of the difficulties of being a plaintiff in trade secret litigation (as though we needed to be reminded!). These difficulties include:
- Proving the “secrecy” and value of your trade secret;
- Showing your trade secret was not independently derived by the thief;
- Obtaining an appropriately-broad injunction; and
- Proving damages.
So why not try avoiding these challenges altogether? Instead, I urge you to spend time and effort identifying–and then protecting–your truly valuable trade secrets by limiting access to them. These efforts will likely be less expensive than trade secret litigation, and you might event prevent misappropriation altogether. Don’t give thieves easy access to your secret sauce!
At the very least, by identifying and limiting access to your trade secrets, you will do the following two things:
- Limit the universe of potential thieves to only those select few people who had access (this assumes there was no data breach); and
- In the event that trade secret litigation is necessary, make it easier for you to clear the often-challenging “secrecy” hurdle in trade secret litigation: if you limited access to your trade secrets, it will be easier to show that you took reasonable steps to protect them.
The following are relatively low-tech ways to help show you took reasonable steps to protect your trade secrets:
- Require employees to execute non-disclosure agreements before beginning employment;
- Implement policies dictating who has access to certain important materials and provide (and enforce) consequences for failing to comply with those policies;
- Segregate your trade secrets from other less-important files (both physical and electronic files) and allow access to only those people who absolutely require access to perform their jobs; and
- Conduct exit interviews with employees reminding them of their duty to keep employer information confidential.
If you have any questions about how you might protect your company’s critical secrets, please let us know.