Consider this: a former employee has just left his or her employer and may have taken trade secrets to a competitor. Can the employer log in to that former employee’s personal social media account to search for potentially incriminating evidence? For most employers, the answer may be “no,” as doing so may be unlawful or at a minimum, may constitute “unclean hands” (a doctrine barring equitable relief when the party seeking the relief has committed misconduct related to the claims at issue) possibly jeopardizing the employer’s trade secret misappropriation (and other claims) against the former employee. READ MORE
Fishing for ESI
When National Fish and Seafood’s (NFS) head of research left for a new opportunity at Tampa Bay Fisheries, she may not have taken just her talents to the competition. According to NFS’ lawsuit, the former employee transferred thousands of files containing confidential and proprietary information prior to her departure from the company. NFS also alleges that the CEO of Tampa Bay Fisheries conspired with NFS’s former employee to steal trade secrets involving its proprietary clam production process.
Orrick Launches New Cybersecurity Blog
We’re excited to announce Orrick’s new sister blog, Trust Anchor!
Trust Anchor highlights current topics in cybersecurity and data privacy, such as recent cases, legislative and regulatory developments, emerging standards, risk management strategies, and insurance coverage. It’s not just news. Instead, it aims to review new developments and offer actionable privacy and cybersecurity intel and strategies. READ MORE
FROM THE ARCHIVES: The Role of Alleged Trade Secrets Forensic Evidence in the Amanda Knox Murder Case
Italy’s high court has taken up the appeal of Amanda Knox’s murder conviction in the 2007 murder of Knox’s British roommate in Italy. A decision was expected as early as Wednesday, but with a full caseload, the judge has said a ruling may not be handed down until Friday.
The story has grabbed headlines for years, and while many of us are now all-too-familiar with the grisly details surrounding the case, most are not aware of the role trade secrets have played in the proceedings. READ MORE
The Role of Alleged Trade Secret Forensic Evidence in the Amanda Knox Murder Case
Last week, Sen. Maria Cantwell and Rep. Adam Smith, both Washington Democrats, convened a Congressional briefing to discuss the ongoing murder case against Amanda Knox, the 26-year-old University of Washington foreign exchange student who was convicted in Italy of brutally murdering her 21-year-old British roommate, Meredith Kercher. The highly publicized and polarizing story of Kercher’s gruesome murder is stomach-churning and heartbreaking, especially for trade secret lawyers who are more accustomed to discussing source code and customer lists. Yet there is a trade secret component to this case. Boise State University, the employer of one of Knox’s consulting technical experts, is holding back relevant DNA analysis research on the grounds that it is a trade secret. READ MORE
Know When to Fold ‘Em: Avoiding Bad Faith When Litigating Trade Secrets Cases
In his classic song The Gambler, Kenny Rogers famously advised: “You got to know when to hold ‘em, know when to fold ‘em, know when to walk away, know when to run.” It’s good guidance for surviving a poker table, but also important to plaintiffs prosecuting trade secret claims. Understanding your evidence — or lack thereof — can mean the difference between winning or losing and having to pay your opponent’s attorneys’ fees.
In the recent case of All American Semiconductor LLC v. APX Technology Corp., a California appellate court affirmed a trial court’s award of $200,000 in attorneys’ fees against a plaintiff for prosecuting a trade secret case in bad faith. Though the case is not published, it is a good reminder that aggressively pursuing and maintaining trade secret claims based on speculation and suspicions, without strong evidence, can have serious consequences.
California’s Uniform Trade Secrets Act provides for attorneys’ fees when a plaintiff has brought a bad-faith trade secret claim. It states: “If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney’s fees and costs to the prevailing party.” READ MORE
Smoking Gun or Blowing Smoke? Five Tips to Make Sure That Computer Forensic Evidence of Trade Secret Theft Is What You Think It Is
Today’s hackers and ex-employees steal secrets with USB drives, personal email accounts, and computer networks, making computer forensics critical in detecting trade secret theft.
A computer forensics expert can tell if files were copied or downloaded, what websites were browsed and for how long, and whether emails were created or deleted contemporaneously with other suspicious activity. This electronic evidence is valuable, but isn’t worth much if evaluated improperly. Companies presented with forensic evidence must review it carefully, and in context, to determine whether suspicions of trade secret theft are founded or not.
Could that computer forensic evidence have an innocent explanation? We’ve put together five practical tips for ensuring that when you evaluate forensic evidence, you don’t shoot yourself in the foot.