Protecting trade secrets can be challenging as they are not simply tangible assets. Intangible trade secret assets also exist in the form of information in employees’ minds, as well as data on computers and in the cloud. Unlike 50 years ago, information can be shared almost simultaneously through online and cellular communication, making misappropriation significantly easier today. Information, such as engineering drawings, that were once stored in locked vaults and cabinets, can now be stored on a single thumb drive, making it easier for a person to steal trade secrets and avoid detection.
DETERMINE IF YOUR TRADE SECRETS ARE SAFE
Here are several questions to consider when determining if your company’s trade secrets are safe.
- Who has access to the information? Are those with access likely to stay with the company? Are those with access bound by confidentiality obligations? Have they ever been employed by a competitor?
- Is the information inaccessible to temporary or contract employees? Where is the information located? Is it in a single spot, possibly a fireproof safe inaccessible to all but key employees?
- What efforts are required for a competitor to reverse engineer the information? Can the information be kept secret for at least 20 years, or is it unlikely that within the next 20 years someone will come up with identical information?
- Is the information a process that is performed within a restricted access and secure facility?
IMPLEMENT PROTECTIVE MEASURES
With the increase in digital assets, improvements in technology and lack of job loyalty, companies must make sure, now more than ever, to take appropriate protective measures to ensure their trade secrets don’t end up in the wrong hands.
- Implement employment agreements for employees and third parties (such as contractors) to read and sign. These policies should include the notice requirements of the 2016 Defend Trade Secrets Act. Depending on the jurisdiction, it is not wise for companies to rely solely on non-compete contracts, as they may not be enforceable within the state.
- Make sure that the trade secret information is clearly labeled as confidential trade secret information.
- Passwords, locked vaults, cabinets, and other safeguards should be put in place. Only employees who need the information to complete their job tasks should have access to it.
- Implement policies prohibiting employees from downloading certain information, such as formulas, onto portable devices and thumb drives without prior consent.
- When employees leave the company, it is important to make sure that trade secrets do not walk off with them. Conduct exit interviews where the policies discussed above are emphasized to the departing employee, and disable the departing employee’s accounts and/or other access to the information.