The Sedona Conference has published its “Commentary on Protecting Trade Secrets Throughout The Employment Life Cycle” (March 2022). It is another excellent and authoritative work in its series on trade secret protection. See Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation.
The Commentary describes the protection problem as the inherent tension between an employer’s interest in protecting its trade secrets, on the one hand, and a departing employee’s interest in engaging in future employment by using “general skill and knowledge,” on the other.
Sedona explains that employers must disclose trade secrets for employees to function; however, each disclosure “necessarily puts it at risk.” Id. at 2. It states:
A frequently cited study by Symantec Corporation found that half of employees who left their jobs kept confidential data of their former employers…. Roughly the same number claimed that the company failed to enforce policies applicable to data protection.
Id. at 1. Thus, Principle 1 recognizes that: “There is an inherent tension between an employer’s interest in protecting its trade secrets and an employee’s interest in engaging in future employment.
In providing solutions, the Commentary addresses every phase of the employment cycle, including recruiting, onboarding, the period of employment, and termination of the relationship. It does so from the perspectives of a hiring employer and prospective employee, as well as from the views of an exiting employee and soon-to-be former employer.
The Commentary follows Sedona’s standard format of providing Principles, Guidelines, and explanations. As such, it provides preventive suggestions to avoid problems, as well as remedies to address them if they arise.
The Commentary mentions a forthcoming “Commentary on the Governance and Management of Trade Secrets” and cites to the “Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.”
For a description of The Sedona Conference, see Kenneth J. Withers, “The Sedona Conference and its Impact on E-Discovery,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 35. Kenneth notes that the model of the Conference is “dialogue, not debate.” Dialogue is focused on crafting solutions. Id. at 848-49. The goal is “to advance the law in a reasoned and just way.” Id. at 849.
This Commentary on trade secrets does just that.