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

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

Preliminary Steps

Investigating the Suspected Misappropriation

A prompt and thorough investigation can be critical to successful trade secrets litigation. One of the first steps in an investigation is determining which information of the employer is truly secret and valuable because it is secret. Next, the employer must investigate what, if any, trade secret information the employee actually misappropriated. This investigation often consists of an in-depth forensic analysis of the employee’s:

  • Email (especially emails sent to a personal email account).
  • Desktop and laptop computers (including indicia that USB memory devices have been plugged in).
  • Handheld electronic devices.
  • Cloud storage accounts.
  • Office files.
  • Calendar.
  • Computer and telephone logs.
  • Records of office access.
  • Travel and expense records.

The investigation should be performed by an experienced electronic forensic analyst who not only can perform the investigation, but can later act as electronic forensic expert in support of the employer’s claims.

An investigation’s revelation that the employee misappropriated trade secret information is often sufficient to obtain a court order directing the employee to cease all use and disclosure of that information and return it to the employer. This result rests on the evidence or presumption that:

  • As a former employee, the defendant has no authorized or legitimate purpose for using or disclosing the employer’s trade secret information.
  • The employer will be competitively injured by the employee’s or the new employer’s use or disclosure of this information.

An employer’s investigation into suspected trade secrets misappropriation also typically includes gathering information about the employee’s new employer and business.

Download the full Practice Note in PDF format: “Trade Secrets Litigation – 2022 Update