November 06, 2017 Articles

Tips for Ensuring That Your Client’s Trade Secret Security Measures Are Reasonable under the Circumstances

Courts often look to indicators such as restricted physical and electronic access, the use of nondisclosure agreements, and clear markings indicating a document’s secrecy or confidentiality to guide their inquiry.

By Daniel Kaufmann

You are sitting at your desk on Friday afternoon when the telephone rings. It is one of your long-standing clients who develops cutting-edge software. The client mentions that it hired a software engineer from one of its competitors several months ago. According to the client, the new engineer brought with him some “creative” ideas from his old employer. Unfortunately, your client has just been visited by a process server. The client hastily mentions that the complaint references trade secrets and concepts like misappropriation. The client would like you to drop by on Monday to discuss the complaint and meet with the new software engineer.

This scenario is probably familiar to most commercial litigators. Several things likely cross your mind when you start to handle a case with allegations of misappropriation of trade secrets. One concept that that should be front and center in your early analysis is the security precautions employed by the company claiming to have a trade secret.

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