To borrow from a classic song:
There’s something happening here. What it is ain’t exactly clear.”
Last Thursday, a federal district judge sentenced a former DuPont employee to 18 months in jail, following a guilty plea of stealing trade secrets relating to DuPont’s Kevlar products. A few weeks earlier, the U.S. Attorney for New York’s Southern District sought primacy for criminal charges over a civil trade secrets theft case involving luxury hotel management information. And just before that, a former Goldman Sachs IT employee was indicted over allegations he stole source code for a proprietary trading program.
On the civil side, there also have been recent newsworthy cases. The Mayo Clinic and a former researcher are embroiled in a dispute over commercialization of a software program developed at Mayo. Last month, Thermax agreed to pay $38 million to settle trade secret theft claims relating to water treatment processes. The same week, a Delaware court ruled that former Agilent employees misappropriated trade secrets relating to high performance liquid chromatography. In most of these cases, former employees, who had signed confidentiality and non-compete agreements, allegedly stole confidential data by emailing it to personal accounts or copying it to zip drives, lap tops or similar portable storage devices.
What’s going on here? Why, despite widespread use of traditional means of protecting trade secrets, are there so many cases, cutting across industries, involving high level individuals? For sure, these issues are complex and worthy of extended law review treatment. But, if, as these cases suggest, there is a bit of an epidemic out there, is there anything more employers can do — anything that gets them ahead of the curve — anything that gets employees who work with trade secret data to pay attention to its ownership or their contracts?
This may sound old-school, but maybe it’s time for more employers aggressively to educate employees who have trade secret access about the consequences of misbehavior, as well as what the theft of trade secrets might mean to fellow employees. For instance:
- How many organizations follow up the ordinary signing of confidentiality agreements or granting of password access to confidential information with repeat, all hands, reminders of the consequences of not taking confidentiality seriously?
- And apart from emphasizing that taking data can have real consequences, how often is the potential impact of trade secret theft on other employees — loss of competitive standing leading to job insecurity — a training or communications topic?
Just a thought — but if the point is to be sure the “barn door” is closed before the horses stray, perhaps ongoing reminders and education (“only you can prevent forest fires”) are what is needed.