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Matt: Hello and welcome back again to Trade Secret Law Radio, I am Matt Plessner and today we are going to discuss computer forensics and how to legally protect your trade secrets when it comes to computers and electronics.
Mark Clark, of course, joins us from the Traverse Legal office of Traverse City, Michigan once again today. Mark, Good Morning.
Mark: Good Morning Matt. How are you?
Matt: I am doing very well, thank you! Now to start off, can you please tell the audience and everybody listening what is exactly meant by computer forensics?
Mark: Well, Matt, computer forensics deals with preservation, identification or extraction of evidence from a computer or computer system. Computer forensics, and when I say computer forensics, it’s your IT or technology guy who has special training in what we now call computer forensics and forensic is a fancy name for an investigator. It is like a computer private ‘I’ if you will. And computer forensic investigations take advantage of the computers store and retrieve data. A trained computer forensic investigator can tell you, in many instances, whether something has been downloaded or removed from a computer or computer database, and often times they can actually get in and tell you exactly what it is that was either removed, downloaded or sent from one computer to another. And this has been very helpful in the area of trade secret law because gone are the days where the employee or an officer left the company and started his own company or her own company or went to a competitor with a box of documents. It just doesn’t happen anymore. What happens is things are download or saved or removed and transferred from a computer onto a mobile disk drive or onto another computer or sent electronically somewhere else. So if you are a company owner and you are concern about whether or not an employee left your employment with trade secrets, computer forensics is the thing that will likely tell you in the end whether that happened.
Matt: That is great, Mark. You know you are talking about the evolution of electronics and computer systems and that, of course, back in the old days, everything was stored as a hard paper copy or like that. And now a days, computers are used in almost every aspect, or some aspect, of a company.
What are some things that are stored in computers that can be used as evidence to back up a trade secret and what are some things that are commonly used as trade secrets are stolen?
Mark: Well, it just depends on the nature of your business. We have done some radio shows in the past concerning what a trade secret might be and how to protect your trade secrets, and in a nutshell, a trade secret is, if you will, the secret sauce if you are manufacturing something, or it could simply be as simple as a client or customer list that you have designated as a trade secret among your employees and you have taken the steps to protect it against theft or you have kept it as a trade secret. In other words, you have taken the steps to secure information from the outside. And so when somebody leaves your employment, sometimes as a business owner, you will be concern that they have stolen what you have tried to protect as a trade secret and, of course, that is illegal. So when you get into the issue of whether or not someone did or did not remove a trade secret, often times you turn to the computer forensic expert to examine either the computer you issued to the employee and the employee returned to you, or that desktop computer that the employee may have worked at in the employee’s workstation to determine what information may have been transferred from that computer to someone else by email or some other way, or was downloaded to an external disk drive that stores data or information, and sometimes the computer forensic expert will be able to tell you, on a preliminary basis, for instance, that information was removed and just as simple as that. Then it will be a question of doing some additional digging and probably an additional expenditure of money to try and find out exactly what it is. Often time that can be determine from an examination of the computer’s hard drive which will capture the information and transaction that occurred on the computer even though the user believes that they have deleted the information. So , in order to determine whether or a trade secret has escaped with the employee, it is often times the computer forensic expert is the key individual who can assist the employer and eventually testify at trial. I will tell you a quick story about some cautions employers need to utilize before they make the accusation that someone has removed a trade secret. In one of my more recent cases, I was involved in trade secret litigation representing the employees who had been accused of removing trade secret information from their employer before they went to a competitor for employment. The former employer used a computer forensic expert to determine that data had been removed from those employees’ computers. But they did not take the next step and make the necessary expenditure to determine precisely what was removed. So without going the next step and making the next expenditure to have a very detailed computer forensic examination of those computers, they simply went ahead and filed a lawsuit accusing the employees of removing trade secrets because they were angry, number one, and they suspected without knowing that trade secret information may have been removed. As it turn out, the employees did nothing but remove personal information that they had stored on the computers on their way out the doors, and actually did nothing wrong in the removal of trade secret information, and the former employer ended up paying a significant portion of the attorney fees and costs of the employees because they acted on suspicion and did not properly use computer forensic information in proceeding with their lawsuit. So, I guess the caution is to look carefully before you leap because most times computer forensics will be able to provide you the details of what information or data was removed, but often times you have to expend the money and do the digging before you know for certain. It’s very tempting to act on suspicion, which computer forensic will provide you on a preliminary basis, but it’s often more prudent to go the extra mile and make the extra expenditure before you engage yourself in trade secret litigation without proper information.
Matt: Now Mark, one thing I kind of wanted to finish on is that there are some companies out there that actually allow employees to borrow their personal laptops and even take them home with them. Like I, myself, with my business, Solid Sound Business, it is a mobile disc jockey service, I’ve got laptops and I have two other people who work for me as independent contractors, and I let them use my equipment, and my computers, of course, being some of them. Of course, I don’t really have any, you know, trade secret stuff on there, but some people do. How would you recommend that this continue take place, and, if so, are their lockout chips or are there certain places that information is stored in ways that business who do this that can protect themselves from exactly what you are talking about?
Mark: Well, first of all, if you have trade secrets to protect, before issuing computers to employees, you should have employee computer policies in place that provide generally that both the computer and the information on the computer is the property of the employer and indicate that all data and information associated with that computer is to be left with the employer upon departure. You also need to have policies in place which both define and protect what your trade secrets are, and advise your employees that certain information and data is, in fact, a trade secret and is the property of the employer. So employment policies are the best way to be able to, in the first instance, both define and protect what your trade secrets are, and restrict an employee in the end from leaving with those trade secrets.
Matt: Well, Mark, as always, I appreciate your time and thanks for talking with us today about this subject.
Mark: Very good. It is always nice to speak with you about trade secret law. I enjoyed our conversations, Matt. Thanks very much.
Matt: Thank you very much, Mark. I am Matt Plessner and tune in next time to Trade Secret Law Radio.
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