Keeping Secret Your Trade Secrets

Trade secrets have long been among the most valuable and inexhaustible tools a business may have in its arsenal. Trade secrets are essentially, and oftentimes quite literally, the “secret formula” of how a business operates and produces its products. For many business owners, corporate executives, and in-house attorneys, staying abreast of evolving methods to safeguard trade secrets is an ever-developing custom. The Guide to Protecting and Litigating Trade Secrets provides the reader with best practice advice, case law, statutes, and practice tips to ensure trade secrets remain protected.

At the onset of the COVID-19 pandemic, the traditional workforce drastically shifted. New workplace trends emerged, from teleworking, remote jobs, virtual court proceedings and conferences, and Zoom meetings, to an exponential increase in the use of Skype, WebEx, and Microsoft Teams. March 2020 not only marked the start of a global pandemic but also the start of a high-tech revolution. The sudden shift in work structure made dependency on technology the crux of normal business operations while highlighting the deficits in access to technology and ability to protect information.

Given the new normal of the workplace, now more than ever, a business needs to take practical steps to shield its confidential information. For those looking to secure and litigate trade secrets while also learning how to identify when a trade secret has been misappropriated, this is the book that provides the roadmap.

One of the best things about this book is that it expertly breaks down the fundamentals of trade secrets, even for those who are not intellectual property business executives or practitioners. Authors Gregory S. Bombard, Joanna H. Kim-Brunetti, Emily J. Friedman, and Jeffrey K. Riffer take a teaching approach throughout each of the book’s six individualized chapters to touch on a wide range of foundations in trade secret law. The first two chapters open with a deep analysis of what a trade secret is and identify when a trade secret has been misappropriated. The following chapters inform the reader how to best protect trade secrets, how to litigate misappropriated trade secrets, and how certain large jurisdictions have used noncompete agreements as a mechanism to protect trade secrets.

Though this book was published in May 2020, it is as if the authors predicted the technological changes the COVID-19 pandemic would bring. The book highlights the predatory nature of data breaches in the new digital world and how to ensure trade secrets do not fall prey.

So how does a business safeguard trade secrets when the physical safety of an office and access to its fortifications are stripped away? Whether working from home, working on a hybrid schedule, or shifting back to traditional full-time work in the office, Chapter 3 is a gold mine of information for protecting trade secrets during a pandemic. Sections IV and V of the chapter directly address physical safety measures and high-tech protection of information.

Chapter 4 takes the baton from Chapter 3 and delves further into how trade secrets can be regulated and protected via use of noncompete agreements with employees. Section I of the chapter focuses on six state jurisdictions with “significant commercial, research, and technology hubs.” The chapter’s exceptionally meticulous and comprehensive analysis of noncompete agreements in California, Florida, Illinois, Massachusetts, New York, and Texas highlights how they have taken “divergent approaches” toward using noncompete agreements to defend trade secrets.

The preceding chapters and the ones that follow likewise provide copious amounts of practice tips, case law, and statutes to bolster the reader’s ability to understand, protect, and litigate trade secret law. From a litigator’s standpoint, the well-intertwined use of the law woven throughout the book is critical in cutting down time spent in research and allows for more energy to be spent in analysis of matters. The 11 appendices at the conclusion of the book include everything from the Defend Trade Secrets Act, to model nondisclosure agreements, to sample company use of technology policies, to various Restatements, and more.

If one’s business wants to implement or update policies to better adapt to the emergent changes in the workplace and the digital world, the Guide to Protecting and Litigating Trade Secrets is invaluable. Whether one is a business owner, assists in operating a company, or provides legal counsel to the same, this book should remain in plain view.