According to Halligan, Sackett, and several lawyers who have written on the topic,
you can protect yourself from inevitable-disclosure lawsuits in several ways:
- If your new employer presents you with non-disclosure, non-compete, or non-
solicitation contracts, run them by a lawyer before signing.
- Don't take files, documents, or other materials to your new job without your
employer's permission. They could be used as evidence in a lawsuit.
- Ask your new employer if it has policies in place to prevent illegal use of trade
The view from the other side
It's easy to be mesmerized and outraged by the horror stories of people who have been
sued. But what if it were your job to protect your company's intellectual property?
Some lawyers say prosecuting inevitable disclosure is necessary; the problem is that
many companies and their lawyers don't know how to apply the doctrine properly.
"It's often misused," Halligan said. "It's often applied to an employee regardless
of the circumstances. A lot of this goes on without the employee ever having been told
what's a trade secret." IBM Corp., for example, lost a case against a former employee
and his new company, Seagate Technology, because it could not show that actual trade
secrets had been "misappropriated," according to a Web article by Pascal DiFronzo, the
defendant's lawyer. (See the Resources section below.)
To protect your company's trade secrets, the lawyers consulted for this article
advise that you:
- Clearly label what's company confidential.
Require new employees to sign a confidentiality agreement that clearly spells out your
definition of trade secrets. "If he doesn't sign it, that later can be used as evidence
of bad intent," said Halligan.
- Hold trade-secret exit interviews with departing employees.
- Hire a lawyer to do an audit identifying missing documents, policies, and
procedures that could improve your chance of winning lawsuits.
- Organize trade-secret training sessions for all employees.
- Don't delay in filing a lawsuit. If you do, your information will become less
valuable and your case will become weaker.