You protect your trade secrets. Nevertheless, you just learned that a former employee, who recently resigned, has stolen one of your trade secrets.
What is the first thing that you should do? Immediately attempt to retrieve the trade secret. (Attempted retrieval should be the first step in the company’s trade secret misappropriation response protocol, which hopefully was established prior to the theft in question.) Indeed, the window to prevent the thief’s wrongful disclosure and the potentially permanent loss of the trade secret may be very narrow and closing rapidly.
Attempted retrieval is not a suggestion to engage in over-the-top self-help. Rather, the reality of the situation is that a stolen trade secret is especially fragile and the clock is ticking. The thief could quickly (a) publicly disclose the trade secret or (b) board a flight to a foreign country with (i) an electronic copy of the trade secret stored on a laptop, smart phone, tablet or thumb drive or (ii) a paper copy of the trade secret tucked into his jacket pocket. If any of those scenarios were to unfold, then the trade secret and competitive advantages it provides likely will be irretrievably lost.
Of course, a legal action (civil and/or criminal) might be a viable simultaneous or nearly simultaneous step. But, a legal action, including the underlying investigation, against the thief and others who have committed, or are threatening to commit, the misappropriation should not delay measured self-help.
Self-help sounds straightforward, but what exactly does that mean? First, two corporate representatives, at least one of whom worked closely with the former employee, should promptly and politely seek out and visit the former employee and attempt to retrieve from him all company property, including the trade secret (i.e., all electronic and paper copies thereof) and any company laptop, smart phone, tablet, thumb drive, files and documents. (If the former employee had an exit interview, then all company property should have been retrieved during that interview or immediately thereafter.) The corporate representatives also should ask the former employee if he has disclosed the trade secret to anyone not authorized to access the trade secret. If so, then the corporate representatives need to immediately and politely (1) attempt to obtain the identities of those recipients, (2) attempt to obtain the identities of the devices and pathways used to accomplish that disclosure and (3) attempt to retrieve those devices. (Ideally, language in an applicable employment, confidentiality, non-disclosure or other agreement expressly authorizes the foregoing obtainment and retrieval of information, property and devices.)
If the former employee refuses to immediately cooperate, or, in the first instance, cannot be located, then the trade secret owner’s next step (whether set forth in a formal protocol or not) should be to promptly contact local law enforcement to report the theft of company property, i.e., the trade secret and any physical property, including any laptop, smart phone, tablet, thumb drive, files and documents. (Certainly, the trade secret owner simultaneously could engage in the above-described self-help and contact local law enforcement.) Ideally, a prompt visit from local law enforcement will motivate the former employee to immediately cooperate or a prompt response from local law enforcement will result in quickly locating the former employee and obtaining and retrieving the above-described information and property.