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 previously wrote on the theft of company information and forensics and the nuances of joint representation of an onboarding employee and the hiring company. Our last topic recap will cover jury selection.
Link to The Importance of Jury Selection The Importance of Jury Selection
During the age of “nuclear verdicts,” the importance of jury selection cannot be overstated. Amongst the various panels presenting at the AIPLA, jury consultant DOER Research Center provided invaluable insight. As a backdrop to the presentation was a jury award in Manhattan to TriZetto of $284 million in compensatory and $570 million in punitive damages, an Illinois jury award of $764 million to Motorola, and a Virginia jury award of almost $2 billion to Appian Corp. Given these awards, DOER conducted a very telling survey to determine the best juror in a trade secret case, depending on what side of the case your client finds itself.
One of the key questions asked (a question that is asked in virtually every trade secret deposition) was “How acceptable or unacceptable is it for a departing employee to take technical plans for technology developed by their employer?”. A second question was “How acceptable or unacceptable is it for a departing employee to take technical plans for technology that she or he helped develop?”. The study allowed for answers of completely acceptable, somewhat acceptable, slightly acceptable to slightly unacceptable, somewhat unacceptable, and completely unacceptable.
As may be expected, 74% answered that it was unacceptable to take an employer developed technology, with 56% finding it to be completely unacceptable. However, and perhaps a little surprising given common company policies and work for hire agreements clearly establishing ownership of all work product in favor of the company, the tide turned when it came to technology the employee helped to develop. Just under 60% indicated that it was acceptable to take plans they helped develop when they left their job, with 15% finding it to be completely acceptable.
To obtain more insightful guidance, DOER broke down the differences in response based on age and gender. Well over 60 percent of individuals aged 55 and older found it completely unacceptable to take their employer’s technology, while a majority of 18–24-year-olds found it to be acceptable. The stark contrast based on age was not borne out when distinguishing between men and women, though there are differences. In general, women find it more unacceptable than men to take an employer’s technology when leaving a job.
DOER’s research was interesting and provides great questions for jury selection. One of the key take aways from the survey is that women in the age category of 55 and older may be the best jurors for a plaintiff when it comes to establishing a violation of the Defend Trade Secrets Act for taking an employer’s technology. A final note of interest is that the DOER research found that it made little substantive difference when it came to venue for litigating the claims. Of course, the research touched upon many questions beyond what is referenced here.