On September 7, at 3:00 p.m. – 4:00 p.m. Eastern, Robert Milligan will present “Understanding and Exploring the DTSA” CLE webinar.

The Defend Trade Secrets Act of 2016 establishes federal jurisdiction over trade secret theft and creates a federal cause of action for trade secret misappropriation. It affords damages and injunctive relief and further allows an aggrieved party to obtain an ex parte seizure of property necessary to prevent the propagation or dissemination of a trade secret. However, the law also provides immunity for certain disclosures, such as in a court filing under seal or to a government official for the purpose of reporting a suspected violation of law. Notice of the immunity provisions must be included in any contract or agreement with an employee that governs the use of a trade secret or other confidential information. Continue Reading Robert Milligan to Present “Understanding and Exploring the DTSA” CLE Webinar

In Seyfarth’s fourth webinar in its series of 2017 Trade Secrets Webinars, Seyfarth attorneys Robert Milligan and Joshua Salinas were joined by Jim Vaughn, one of California’s leading computer forensics experts, presented Trade Secret Protection: What Every Employer Needs to Know. The panel focused on how to help employers navigate the tricky trade secrets waters and provided best practices for trade secret protection.

As a conclusion to this well-received webinar, we compiled a summary of takeaways: Continue Reading Webinar Recap! Trade Secret Protection: What Every Employer Needs to Know

50 State Desktop Reference: What Businesses Need to Know About Non-Compete and Trade Secret Law

It has been an extraordinary year regarding trade secret and non-compete issues. We saw more and more cases filed in federal court asserting claims under the Defend Trade Secrets Act (“DTSA”) and for alleged violations of non-competes. Some states passed legislation further narrowing the use of non-compete agreements, and some media outlets, academics, and regulators have continued their criticism of such agreements. We expect over the next year, the law to continue to develop regarding the DTSA’s application, definitions, scope, limitations, benefits and interpretation with regard to the immunity provisions. Our 50 State Desktop Reference is a useful guide to know how the law is currently applied in each state.

Seyfarth’s Trade Secrets, Computer Fraud and Non-Competes Practice Group is pleased to provide the 2017-2018 Edition of our one-stop 50 State Desktop Reference, which surveys the most-asked questions related to the use of covenants and intellectual capital protection in all 50 states. For the company executive, in-house counsel, or HR professional, we hope this guide will provide a starting point to answer your questions about protecting your company’s most valuable and confidential assets.

How To Get Your Desktop Reference

To download the pdf of 2017-2018 Edition of the 50 State Desktop Reference, click here.

To request a hard copy of the Desktop Reference, click on the button below.

shutterstock_377009158As a special feature of our blog—special guest postings by experts, clients, and other professionals—please enjoy this blog entry from Bobby R. Williams, Jr., a senior consultant at iDiscovery Solutions.

When litigation looms or a data preservation notice is sent out, key individuals or parties might try to delete data to avoid discovery – despite well-publicized horror stories regarding data destruction, phone and email wiping, and the risks of spoliation and sanctions. In many cases, if we find an absence of evidence during an examination, we typically also find evidence of destruction. We refer to these individuals as “Wipers.”

Wipers are the folks who roll the dice and try to game the system. They have enough knowledge to know how to destroy data, feel like they can get away with it, and take a chance. “The document is gone, aha!” might say the Wiper. However, Wipers still run into problems they didn’t anticipate. Even if they manage to delete or destroy the incriminating document or email, they’ve usually taken the time to install and run data destruction software, leaving behind associated artifacts showing the download and usage of such software. Another thing Wipers usually don’t consider: they leave behind other artifacts and data that gives us a clear picture of the document. Data showing when the document was created or modified, the folder it was saved in, even who opened it, when, and how many times. In trying to cover up the original footprints, they invariably left new footprints. And sometimes, even when a Wiper believes they completely deleted the document itself, it sometimes resides in a snapshot or backup they did not see. Continue Reading How To Address Wipers In Trade Secret Cases

Illinois is one of several jurisdictions that recognizes the authority of courts to blue pencil or judicially modify otherwise unenforceable restrictive covenants to be enforceable. See, e.g. Weitekamp v. Lane, 250 Ill. App. 3d 1017, 1028, 620 N.E.2d 454, 462 (4th Dist. 1993) (affirming judicial modification of 300-mile non-compete to specific county); Arpac Corp. v. Murray, 226 Ill. App. 3d 65, 80, 589 N.E.2d 640, 652 (1st Dist. 1992) (affirming the circuit court’s modification of restrictive covenant when it was modified “only slightly” and holding that the balance of the restrictions were reasonable and necessary to protect Arpac’s legitimate business interests).

Recent reported decisions, however, cast doubt on the availability of judicial modification in all but exceedingly limited circumstances. In the past three years, only a handful of cases even mentioned judicial modification and, of those cases, not one actually modified, or affirmed the modification of, an otherwise unenforceable covenant. See AssuredPartners, Inc. v. Schmitt, 2015 IL App (1st) 141863, ¶ 52 (2015) (refusing to modify restrictive covenants because “deficiencies too great to permit modification”); Bankers Life & Cas. Co. v. Miller, No. 14 CV 3165, 2015 WL 515965, at *3 (N.D. Ill. Feb. 6, 2015) (deciding choice of law, noting that “Illinois courts are circumspect in their modification” and that “Illinois courts look skeptically at modifications, and may modify covenants only after ensuring that fairness is not harmed”); Fleetwood Packaging v. Hein, No. 14 C 9670, 2014 WL 7146439, at *9 n.7 (N.D. Ill. Dec. 15, 2014) (rejecting a proposed modification that would a create a durational limitation where none existed before, noting that “[e]ven when courts have found judicial reformation to be warranted, the challenged restrictive covenants needed only slight modification to become reasonable”).  Continue Reading Illinois Employers Should Not Depend on Blue Penciling to Enforce Restrictive Covenants

As a special feature of our blog—special guest postings by experts, clients, and other professionals—please enjoy this blog entry from Jonathan Karchmer, a senior managing consultant at iDiscovery Solutions with experience in managing projects dealing with computer forensic examination and experience advising counsel regarding intellectual property and trade secret theft. 

It was a matter of hours. A simple thing really. Was an email sent at 10:00 a.m. or at 2:00 p.m.? An entire case hung in the balance; if the email was sent at 10:00 a.m., the custodian had prior knowledge, if at 2:00 p.m., then not. Unfortunately, the email had been extracted and produced on multiple occasions during the litigation, each showing a different time. iDS was called in to do two things: First, determine the correct time the email was sent, and second, explain to the court how the time could have been incorrectly reported so often without nefarious intent. Continue Reading How to Catch Trade Secret Thieves Who Try to Cover Their Tracks: A Forensic Perspective

Robert B. Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud & Non-Competes Practice Group, will be a speaker for the “Injunctive Relief” panel at the Sedona Conference on Developing Best Practices for Trade Secret Issues on December 8 at 8:30 a.m., in Scottsdale, Arizona.

The panel will discuss:

  • The uses of equitable solutions in trade secret disputes
  • How parties and courts can craft case-specific remedies
  • How to ensure that, while offering the virtue of flexibility, equity is not whim

The Sedona Conference is an assembly of thought leaders in the areas of antitrust laws, complex litigation, and intellectual property rights; and it brings together the brightest minds with the goal of creating practical solutions and recommendations on tipping point issues.

For more information about the Sedona Conference, click here.

As a special feature of our blog—special guest postings by experts, clients, and other professionals—please enjoy this blog entry from Daniel Garrie, senior partner and co-founder of Law & Forensics. 

This post originally appeared on the Legal Executive Institute blog. 

The dirty secret of trade secret disputes is that even if you win, it can be difficult to get back to where you started. It’s like closing the stable door after the horses have run off with trade secret disputes. A court or arbitration panel may not have trouble reaching findings of fact and conclusions of law, but the secrets are still out there. And ensuring that the trade secret information is entirely removed from the offending company’s systems is a lot harder than rounding up wild horses. Continue Reading The Neutral Corner: Using Forensic Neutrals in Trade Secret Disputes

shutterstock_594829253As a special feature of our blog—special guest postings by experts, clients, and other professionals—please enjoy this blog entry from Supreet Singh, a senior consultant at iDiscovery Solutions, Inc. 

It’s hard to believe the first smartphone was released over 20 years ago. At that time, few thought it would become such an integral part of our lives. Additionally, this year marks the 10th anniversary of the iPhone and its introduction altered the world of digital forensics. Smartphones contain a wealth of personal and sensitive information like passwords, security or access codes, account numbers, electronic communications, and much more. But they are more than mere containers of data. Between the operating system, installed applications, and service providers, there’s a wealth of information that can provide dramatic insight into conversations, activities, habits, preferences, and movements of the phone’s user.

There are essentially three places where smartphone related data can be found: on the phone itself, with mobile app providers (e.g. Facebook, Snapchat, or Yelp), and with the service provider (e.g. AT&T or Verizon). Data from all three sources can be very useful in civil lawsuits, criminal cases, or internal investigations, depending on the needs of the case. Continue Reading The Smartphone: A Treasure Trove of Evidence in Trade Secret Cases

The Defend Trade Secrets Act (DTSA) states very clearly that an injunction issued pursuant thereto may not “prevent a person from entering into an employment relationship,” and that any conditions placed on a former employee’s employment in an injunction must be based on “evidence of threatened misappropriation and not merely on the information the person knows.” (Emphasis added). This language appears to bar injunctive relief under the DTSA based on the “inevitable disclosure doctrine,” which in some states permits a court to enjoin a former employee from working for a competitor—even in the absence of a signed non-compete agreement—if it can be established that the employee would “inevitably” (even if inadvertently) use his or her former employer’s trade secrets on behalf of a new employer. As a result, when the statute was first enacted, many commentators assumed that claims based on the inevitable disclosure doctrine would quickly be shot down. In practice, however, that does not appear to be the case. At the very least, some recent federal court decisions have sown confusion around this issue.

We recently wrote about a federal court’s ruling in the Northern District of Illinois that applied the inevitable disclosure doctrine to a DTSA claim. Despite its non-precedential value, this ruling was significant because it interpreted a federal law to allow the application of a doctrine that has been expressly rejected in several states, including California, Maryland, and Virginia, and, again, appears to be barred by the plain language of the DTSA. That case can perhaps be explained by the fact that it was decided on a motion to dismiss, not a motion for injunctive relief, and thus the DTSA’s apparent prohibition on basing an injunction on inevitable disclosure was not necessarily implicated. The same cannot be said about a decision that was issued just three weeks later by the United States Court of Appeals for the Third Circuit, in which the Court applied the inevitable disclosure doctrine in the context of a temporary restraining order. The case is Fres-co Systems USA, Inc. v. Hawkins, 2017 WL 2376568 (3rd Cir. June 1, 2017). Continue Reading The Third Circuit Addresses the Defend Trade Secrets Act and Appears to Have Applied the Inevitable Disclosure Doctrine