It is unfortunate when a key employee leaves a small business. But when they leave with important information that could be used to undermine the company’s interests, legal action must be taken to secure the company’s interests. These situations commonly arise under a violation of a non-disclosure agreement or non-compete agreement.
A common remedy is to seek an injunction to prevent the former employee from disclosing or utilizing trade secrets for their own gain. But in doing so, should you have to disclose the very trade secrets you are trying to protect? This post will explore this catch-22 and highlight a couple remedies.
Controlling case law regarding trade secrets suggest that a plaintiff must disclose with “a reasonable degree of specificity and precision” the trade secret at issue in order to separate it from other items of general knowledge. After all, not all knowledge that a company claims to be specialized can be deemed a trade secret.
However, disclosure could be tricky given that your competitor (i.e. the ex-employee) may already know about your secrets and is using them in their new business. In these instances, disclosing the secrets subject to a protective order may be a prudent course of action. Conversely, if the secrets have not been disclosed (or exploited), and a plaintiff simply suspects that unauthorized information has been stolen, there may be some work to be done to maintain the exclusivity of such information.
Either way, an experienced business litigation attorney can be helpful in protecting trade secrets in the midst of litigation.
The preceding is not legal advice.
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