As bring-your-own device policies proliferate, and digital storage become cheaper and more prevalent, it has gotten easier to pilfer trade secrets. A key point in understanding trade secrets is that the law protects information and not necessarily particular things. Any document might contain lots of protectable information along with material that is not protected at all. Trade secrets can include “negative information” — knowing the dead ends a competitor pursued.
In-house counsel can do a lot to protect against trade secret problems. Understanding what constitutes protectable trade secret information is key. Best practices for on-boarding and off-boarding employees are crucial, and so are proprietary rights agreements (PRAs). The law of trade secret protection is constantly evolving, and your PRAs need to change as well to remain fully enforceable. Conversations with new hires are a chance to ascertain whether they took any trade secrets from their former employer, are under non-competes, and are familiar with your internal reporting or whistleblower system. Off-boarding should be just as robust, but with extra focus on collecting devices and any media or virtual locations where your proprietary information may reside. The PRA obligations should be reinforced, and access to systems should be immediately terminated. If there are red flags or odd vibes, follow up.
There is no one-size-fits-all solution, but through a careful and deliberate process, you can do a lot to protect your own trade secrets and to protect against being a trade secret defendant yourself.