Trade Secrets Gone in a Flash?
May 26th, 2008
In the blink of an eye, trade secrets can move from computer to USB drive; from secret to stolen.
When it comes to protecting your client’s most valuable intellectual assets, and/or proving
your case, the steps you take in the critical moments after the discovery of a potential trade secret theft make all the difference in the world.
We offer the following “Top 10 Steps” to help you and your clients successfully navigate
through the important early stages of a trade secret theft in the making.
Top 10 Steps to Take if You Think Your Trade Secrets Have Been Misappropriated:
- Hold it. Avoid the temptation of turning on the suspect’s computer to see what has happened. Doing so can permanently destroy electronic evidence.
- Image it. Have computer forensic images made of suspect computers to preserve Electronically Stored Information (ESI). Use a credentialed / certified expert to protect your option to have ESI entered into evidence in the future and to prevent spoliation.
- Preserve it. Even if you do not wish to perform an in-depth computer investigation
at this time, consider imaging the computers for potential future analysis if you learn that your former employee is using your confidential information inappropriately. This is inexpensive and very smart. Protect your chain of custody with tight documentation. - Secure it. Preserve the employee’s work area. Document and secure computers and collect loose media (storage devices, CD-Roms, USB devices, etc) Take notes and record serial numbers, times and dates.
- The BlackBerry Factor. Remember that Blackberries, Cell Phones, PDAs, and iPods can be
goldmines of important ESI. Collect these and secure them. If you believe they contain sensitive data, have them imaged and preserved to prevent loss of critical ESI through prolonged loss of power to the devices. Critical text messages and email can often be recovered from these devices. - Voice Mail. Consider reviewing and preserving the former employee’s voicemail.
- E-Mail. Check and preserve the employee’s email accounts (and your company’s back-up systems) to prevent data loss and to preserve potentially relevant ESI.
- Remote Access Pitfalls. Monitor or suspend the former employee’s remote access / VPN
access to your company’s network to prevent unauthorized access after their departure. Shut-down access to company databases and knowledge share web repositories. - Lock-in Employee Statements. Remember the power of the exit interview, particularly with employees that you suspect may be up to no good. Remind employees of their
confidentiality / non-compete obligations and have them re-sign appropriate termination documents which confirm same. Make sure they have returned all company computers, cell phones, etc. Take good notes. Proving that an employee was deceptive during an exit interview (eg., lying about NOT going to work for a direct competitor, etc) can be just what you need to persuade a judge to rule in your favor for an injunction or other remedies. - Act with speed. Going before a judge in 60 days and trying to argue the “urgency” of the matter is an uphill battle. Advise your attorneys at once.
Schedule a FREE CLE on the Application of Computer Forensics in Trade Secret Cases today.
Call us at 312-345-9951 or visit www.impactforensics.com
(Schedule a CLE presented in the convenience of your own conference room by August 1 and we’ll cater lunch for your attendees!)