People who design security measures to protect the confidentiality of business information often face a tension between security and ease of use. When employees view a security measure as an annoying obstacle to getting the job done, they often find a work around to avoid the annoyance. This can create a new risk of disclosing the information that the security measure was designed to protect.
I have worked on multiple theft of trade secrets lawsuits where it is apparent that the plaintiffs never took the time before filing their case to identify their trade secrets. This was not fatal to the plaintiffs’ cases, but it did have ramifications. For example, because the plaintiffs never created an inventory list of their trade secrets, they did not have a precise plan in place to protect the trade secrets from disclosure to competitors. Access to the trade secrets was not strictly limited to those who needed access to perform their jobs. Those employees who did have access had not signed confidentiality agreements specifically tailored to protect the trade secrets. Instead, the plaintiffs relied upon their general business practices, confidentiality clauses in employment agreements and employee handbooks as evidence of the plaintiffs’ reasonable efforts to maintain the secrecy of their trade secrets.
It seems self-evident that it is easier to protect a secret if you know what you are trying to protect. Continue reading
This post continues the discussion from my last post regarding common mistakes that can cause a loss of trade secrets. To qualify as a trade secret, information must be the subject of reasonable precautions to maintain secrecy. This rule applies beyond the procedures that the trade secret owner follows outside of the courthouse. Parties to lawsuits also need to be careful not to waive their trade secrets by publishing the trade secrets in open court.
As we approach and move into a new year, I will write a few posts about common mistakes that can cause a loss of trade secret status. The beginning of a new year is a good time to think about ways that we can do better and avoid mistakes.
An issue that is beginning to work its way through courts across the country is whether a business whose employees use LinkedIn can still protect a customer list as a trade secret. Although this has not yet been addressed in a Texas appellate court decision, I suspect that former employees have already used what I will call the LinkedIn Defense at the trial court level. That could stay under the radar because Texas trial courts don’t publish decisions explaining the basis for their rulings.
This post explains the issue facing employers; provides links to a few case opinions from outside Texas that have addressed LinkedIn in the context of trade secrets; and ends with my thoughts about what employers can do if they want to use LinkedIn and still protect customer lists as trade secrets. Continue reading