1. Trade Secrets
Key points
●
Trade secrets can be protected even if there is no protective contract provision
●
Not all non-public information can be protected as confidential information
●
An employee can use his know how and general skills freely when he leaves employment
●
Most confidential information is now stored in electronic form; electronic data leaves a lasting record
●
The most common remedy to protect trade secrets is an injunction
●
A springboard injunction may be available to prevent use of confidential information
●
Stealing confidential information can be a criminal offence in some countries
●
An information management process will support enforcement
●
Protection of confidential information is enhanced by maintaining proper systems and procedures
Tips
●
Prevention is far better than cure; implement and maintain an information management protocol
●
Map data entry points, and manage how confidential information is received, stored, accessed,
disclosed, and destroyed
●
Sensibly identify what is, and what is not, confidential information
●
Sensibly identify who has access to confidential information, and implement measures to restrict
access by others
●
Use available IT methods to monitor use of thumb drives, or use of personal devices or IT in
connection with confidential information
●
Ensure the employer has the right to monitor use of IT systems on a fair and reasonable basis
●
Remind employees regularly of duties relating to confidential information, and always when an
employee resigns
●
Gather proof and evidence promptly (and ideally while the employee is still employed) before making
demands arising from an alleged breach
●
Consider notifying a new employer of confidential information that an employee may have taken
Traps
●
Having policies that are not maintained or enforced
●
Only considering protection of confidential information after a breach
●
Confusing know how with confidential information
●
Not acting quickly to forensically gather IT evidence of breach
●
Not acting quickly while the employee remains employed
twobirds.com
