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In today's highly mobile and competitive world, employees frequently move between companies within the same industry. Rarely a day goes by without a news report of another high-profile theft of important data from a company or the loss of key employees to competitors.
Employee mobility, coupled with the digitalization of company assets, has increased the need for creative and thoughtful protection of valuable company data. Because of technology like the camera-equipped cellphone, iPad, thumb drives and other mobile devises, it has become easier than ever for employees, especially disgruntled or irresponsible ones, to take and disseminate confidential information to the detriment of their current and former employers.
Intangible assets of companies have risen from about 20 percent in to currently 87 percent. The economic impact of trade secret theft, according to a recent PricewaterhouseCoopers report, is estimated at percent GDP of the United States and other advanced industrial economies. And as much as 71 percent of data security compromises go undetected, according to a Trustwave Global Security Report.
These are the current and former employees and current and former business partners. The objectives of this group are competitive advantage, financial gain and national goals. And their method of operation is spear phishing. Employees 34 percent current, 29 percent former remain the most cited source of compromise. Incidents attributed to business partners climbed to 22 percent from 18 percent. Not surprisingly, there is also an increase in litigation of trade secret theft.
According to panelist Russell Beck , a partner with Beck Reed Riden LLP in Boston, litigation involving trade secrets and or noncompete agreements has increased fourfold over the last 15 years from cases to 2, in A noncompete agreement is one of the tools used to protect trade secrets from employee misuse.
The landscape is changing in the U. Current state or U. The Economic Espionage Act of makes the theft or misappropriation of a trade secret a federal crime.
And there is currently legislation, the Defend Trade Secrets Act, being debated in Congress and moving close to being passed with bipartisan support. A key feature of that law is protection for whistleblowers who disclose confidential information to report a crime. Marsh , a partner with Hahn Loeser in Columbus, Ohio. In order to prove any claim on trade secret misappropriation, you have to establish the existence of your trade secret, which Becks said generally requires three things — information, confidentiality and value.
Having key employees sign agreements is an important step in protecting your trade secrets. Whether it is a nondisclosure agreement or other restrictive covenants such as a noncompete, nonsolicitation agreement of customer or no raid agreement. Marsh advised conducting regular audits of key employee agreements. He recommended using an outside counsel to conduct a review either annually or semiannually.
This will help uncover drafting errors, change in business lines and it will also ensure that key players have enforceable agreements. And Marsh said that it is also important that you follow through on your policies and procedures. Policies offer the opportunity to provide great detail on confidentiality and other obligations, serve as back-up protection if there is a drafting error in an agreement and as a mechanism for addressing computer use and personal devices.
Passman outlined five best practices when creating a culture of confidentiality and compliance with employees. The March 15 program was moderated by Robert B. Evolve or risk extinction. Disclosure of confidences in controversies with clients: State data breach notification laws just got crazier. How to deliver bad news to clients. Tips on finding, preparing expert witnesses from seasoned litigators. Someone online hates you: Law firm bankruptcies, dissolutions: Ethical and legal considerations.
Celebrate spring in a new Mercedes. Policies, procedures and record — these must be communicated to your employees, and you need procedures in place to implement those policies. Information protection team — identify people across the organization who are responsible for ensuring that policies are in place and procedures to implemented.
Risk assessment —do an assessment to understand what your key trade secrets are, where they are, who has access to them, who may be interested in taking them and using them inappropriately. Management of third parties — know who they are and how they manage their employees within your key business partners.
Security and confidentiality management — both in the physical world and the network world. Training and capacity-building — be very clear with them and your third party about their roles in protecting your trade secrets. Corrective actions and improvements — what do you do once you learn there has been a theft; how do go back and identify how it happened so it will not happen again? Starts with the interview and hiring process: Undertake background checks and critically review prospective hires Explain the rules Emphasize the importance of nondisclosure and trade secret protection agreements.
Reinforced in contracts and onboarding: Maintained through education and training: Establish an ongoing awareness and education campaign Use technology and explain why it is being used Advise employees on the consequences of their taking or disclosing trade secrets. Validated through limiting disclosures, monitoring: Print Feedback A A.