Inevitable Disclosure of Trade Secrets: A Claim of Last Resort

The authors of this blog have in the past received frantic calls from clients and prospective clients in which they identify the fact that a key employee has quit and commenced work with a direct competitor, giving the former employer great concern that their company's competitively sensitive crown jewels are at risk of disclosure or use - the crown jewels being, of course, information.

If the company does not have a noncompete or nondisclosure or trade secret agreement in place with that departed employee, what legal theories are still available to that former employer? One, of course, that we cover routinely on this blog is the common misappropriation of trade secrets theory. Another, however, is the less-tested and variant "inevitable disclosure" theory - a claim that the former employee will inevitably disclose the competitively sensitive information to the new employer and/or its agents in the carrying out of their duties in the normal course.

We think the attorneys at Faegre and Benson have done a nice job outlining the lay of the land in connection with "inevitable disclosure" claims and thought you might like to see what they have to say about this theory. We fully agree with their analysis and commend their write-up.

http://www.faegre.com/articles/article_1491.aspx