Trade Secret Attorney, Non-Compete Agreement Attorney

The Importance of Knowing Your Judge in Non-Compete Litigation

Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.

 

Matt:  Hi, it’s Matt Plessner, and welcome back to Trademark Law Radio.  Today’s subject is non-compete litigation and the importance of knowing your Judge.  To talk with us about that today, we welcome back Attorney at Law Mark Clark from Traverse Legal Office of Traverse City, Michigan.  Mark, it’s nice to have you back.

Importance Of Knowing Your Judge In Non-Compete Litigation

Mark: Good morning, Matt.

Matt:  Well, good morning to you.  Let’s start off by talking about what is non-compete litigation, Mark?

Mark: Well Matt, non-compete litigation is the situation where, either as an employer or an employee, a lawsuit is initiated concerning what we call a non-compete agreement.  A non-compete agreement is an agreement signed by an employee, where the employee agrees for a period of time and in a geographic region not to offer competitive goods or services to a competitor for a period time.  These are popular tools anymore for employers to be able to protect some of their business interests, client and customer lists, as well as trade secrets, in the event they lose an employee to a competitor.  When the employee leaves, if the employee ends up at a competitor, often times if there is a non-compete in place and the employee persists in their employment with the competitor, we end up with non-compete litigation.

Trade Secrets and Computer Forensics

Welcome to Trade Secret Law Radio, we bring you the best in trade secret news, legal advice and information.  From trade secret misappropriation to trade secret agreement drafting and negotiation, we cover the issues here.

 

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.

Trade Secrets Litigation_ Computer Forensics Interview

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.

It’s a Trade Secret Because I Said So!

As we review court cases involving claims against former employees by employers for removal of trade secrets, there is a trend that suggests that courts are reluctant to make a finding that a trade secret is involved unless the employer has clearly established the requisites for a trade secret.  An element of a trade secret claim is that the plaintiff employer must demonstrate it took sufficient actions to protect its trade secrets from unauthorized disclosure.  The factors include whether the plaintiff had agreements with employees and others, including customers, to restrict disclosure and any security precautions to prevent unauthorized access to the trade secret.  Assuming a claimed trade secret is a trade secret because the employer says so, courts can still determine that a claim is not actionable because there was no effort by the employer to define the trade secret by way of agreements with employees and others or took the requisite precautions to prevent unauthorized access to the claimed trade secrets.  One of the most popular defenses that employees claim is that the so-called trade secret was available to a myriad of employees and others because it was not protected by way of restricted access, password or other precaution, and which is a very strong defense in the event of a claim. 

The moral of the story is that if you have important trade secrets to protect it is not enough to simply have your employees sign something that says they shall not remove or disclose trade secrets.  The employer needs to define with as much particularity as possible what the trade secret is and take the necessary steps and precautions to restrict access to the trade secret. 

For more information on trade secrets and how to better protect them, contact one of our highly experienced Trade Secret attorneys and lawyers.  

 

 

The Case Against Non-Competes

There is a school of thought and opinion that suggests that non-competes are losing their attractiveness for variety of reasons.  Those leading the discussion against the concept of non-competes claim that trade secrets and other intellectual property can be adequately protected with trade secret agreements and restrictions, and that employers are losing out on a significant part of the talent pool because there is a segment, that tends to be more motivated and talented, who will simply pass on employment rather than sign a non-compete.  Every employer needs to assess whether there is a need for a non-compete depending upon the business, the business model and the business interests that are to be protected by a non-compete.   The best way to protect against customer theft is still, in my view, the non-compete.