USA – PENNSYLVANIA Trends and Developments Contributed by: Leigh Ann Buziak, Kevin Passerini, William Cruse and Timothy (“Timmy”) J. Miller, Blank Rome LLP
Blank Rome LLP One Logan Square 130 N 18th St Philadelphia, PA 19103 USA
Tel: +1 215 569 5500 Fax: +1 215 569 5555 Email: communications@blankrome.com Web: www.blankrome.com
A Playbook for Protecting Trade Secrets in the Modern Digital Age and Under Pennsylvania Law Trade secrets are the lifeblood of many companies. Whether in the form of research and development, compilations of data, key internal strategies, innova - tive formulae or processes, unique methodologies, or even financial information, virtually every business has to keep confidential information protected to maintain long-term growth and profits, as well as to maintain and improve the company’s position in the market against competitors. But in the modern digital age, where virtually all information is stored electronically, one of the greatest risks for potential misappropriation or exploitation of a company’s trade secrets is through devices, applications, and systems that employees and contractors use every single day. As the legal and technological landscapes continue to evolve, and as new means of storing and exfiltrating data emerge, companies must take proactive steps to ensure that their trade secrets are protected and that access to them is appropriately restricted and monitored. Pennsylvania’s version of the Uniform Trade Secrets Act (like its federal companion, the Defend Trade Secrets Act) provides substantial protections and a broad array of remedies. However, a company typi - cally must engage in lengthy, costly litigation to avail itself of those statutory remedies. Litigation also often arises as an option after the damage is already done, and litigation itself can risk disclosure and public airing of the very trade secrets at issue. As a result, protect - ing valuable trade secrets from inception, and in the right way, remains the best practice to avoid litigation in the first place.
Businesses can and should take proactive steps to safeguard valuable business assets, including: • integrating strong, enforceable contractual protec - tions for trade secrets and other sensitive, confi - dential business information, and carefully navigat - ing the related pitfalls under applicable state law; • developing integrated teams and robust informa - tion security and monitoring policies, tools, and practices to facilitate monitoring and tracking of access to and potential exfiltration of electronically stored data; and • using those strong contractual and data protec - tions to identify and address potential misappropri - ation through early investigation and remediation. By taking these steps, those operating under Penn - sylvania law can take advantage of the full protec - tions of applicable trade secrets laws and supplement those legal tools with added contractual safeguards and remedies, better positioning themselves up for short- and long-term success in court, if litigation is necessary. Developing strong, enforceable contracts to protect trade secrets A foundational step to protecting trade secrets and other sensitive, confidential business information is implementing strong contractual protections as a sup - plement to the protections existing under Pennsyl - vania common law and applicable state and federal statutes. The most common contractual provisions – including confidentiality and non-disclosure terms, return-of-property obligations, invention/assignment provisions, and post-employment restrictive cove -
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