Your Trade Secret May Be at Risk: What Should You Do in the Early Stages of a Trade Secret Dispute?
Litigating trade secret disputes is typically intense, fast paced, and hotly contested. The aggrieved party may have been betrayed by a trusted former employee or a potential business partner, or has been subjected to hacking or other nefarious means of obtaining sensitive business information, such as theft, bribery, misrepresentation, breach of a duty of confidentiality, or espionage. Lawyers need to mobilize their resources with alacrity and marshal their evidence so that they can promptly dispatch the appropriately swift legal response to protect valuable business information, whether through a cease-and-desist letter, rushing into court to seek an emergency temporary restraining order, or expedited discovery to aid in a motion for a preliminary injunction. Knowing what to do, what steps should be taken, and what your legal options are is critical to implementing your strategy and achieving your client’s objectives to protect their confidential, proprietary, and trade secret information. Quickly.
This article addresses what should be done before filing a lawsuit when there has been misappropriation or there is a potential threat to improperly acquire, use, or disclose your client’s trade secrets. Part I discusses the statutory background for U.S. trade secrets law; part II addresses common threats to companies’ trade secrets; part III provides suggested techniques to assess threats through investigative techniques; and part IV discusses potential outcomes to resolving trade secret disputes. This article also briefly touches on the use of forensics to detect and reduce risks when employees depart your client’s company or are joining as new employees and going through an onboarding process.
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“Your Trade Secret May Be at Risk: What Should You Do in the Early Stages of a Trade Secret Dispute?” by Leigh Ann Buziak and Seth Gerber* was published in PLI Current: The Journal of PLI Press (Vol. 6), on December 21, 2022.
* Seth Gerber is a partner at Morgan Lewis.