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.