Our team attended the recent AIPLA Trade Secret Summit, one of the nation’s premier conferences on trade secret law. Critical issues surrounding the protection of confidential business information took center stage and we were reminded just how important it is for companies to stay ahead of the curve to safeguard against unfair competition and trade secret theft.
Several topics were key takeaways for us. We last wrote on the nuances of joint representation of an onboarding employee and the hiring company. Another key topic that should be a key consideration for companies protecting trade secrets is the theft of company information and forensics.
Theft of Company Information and Forensics
Theft of company information has become a technological artform. A study referenced during the AIPLA was performed by the Ponemon Institute. The study found that over 60 percent of companies polled had experienced attempts to steal proprietary information. With this as a backdrop, there does not appear to be any question that companies large and small should be taking action to protect their valuable information from theft. Based on experience, the low hanging fruit for finding evidence of information migration outside of the organization is email, removable media, printed materials, remote network access, file transfer, downloads to laptops, and now a fan favorite, screen shots from an alternative device (which can be very difficult to detect without obtaining the device used). When an employee is offboarding, it is crucial to take inventory of all electronic equipment to be left behind inclusive of external storage devices. There is no better time than at the exit interview to discuss every device utilized by the employee and the return of those devices. It is also crucial to obtain credentials to any company device being returned and passwords to any cloud-based accounts used the by the exiting employee.
These steps may seem self-evident and, in some cases, may seem to come across as accusatory, but gathering this information once the individual is off at another place of employment is very difficult if not impossible to accomplish. If there is any inkling of suspicion:
- A company should engage in a multi month look back at email traffic to determine if there is any suspicious activity.
- If suspicious activity is found, calling upon forensic experts to run full evaluations of all returned devices typically provides a picture that leads to a full throttle approach to retrieving stolen information or to a level of comfort that the exited employee has left all proprietary information behind.
In any trade secret investigation, there is little question that utilizing third party forensic experts will provide a court with a level of confidence necessary to justify entry of restraining orders and ultimately injunctive relief intended to retrieve, prevent use of propriety information, and to cease any potential damage coming to fruition.
The foregoing was a common theme amongst many presenters at the conference and excellent guidance for practitioners and their clients.