Thomson Reuters Practical Law has released the 2022 update to “Preparing for Non-Compete Litigation,” co-authored by our colleague Peter A. Steinmeyer.

Following is an excerpt (see below to download the full version in PDF format):

Best Practices for Gathering Evidence

Employers often learn from clients, customers, or employees that an employee or former employee is working for a competitor or preparing to do so. Rather than relying on second-hand knowledge of a suspected violation of a non-compete, employers should promptly conduct their own investigation to:

  • Evaluate whether the employee’s conduct violates a non-compete.
  • Gather evidence to be used if the employer decides to pursue legal action to enforce the non-compete. …

Investigating a Suspected Violation

Because of the nature of the conduct at issue and the potential harm inflicted, an employer should act quickly when it suspects an employee is violating a non-compete. There are numerous reasons for doing so. For example, quick action:

  • Demonstrates that the employer has a legitimate business interest and takes any suspected violation seriously.
  • May minimize damage to the employer’s business resulting from an employee’s competitive activity.
  • Helps ensure that any potential evidence of the employee’s conduct will not be lost (see Preserving Electronic Evidence).

Download the full Practice Note in PDF format: “Preparing for Non-Compete Litigation – 2022 Update