USA – PENNSYLVANIA Trends and Developments Contributed by: Leigh Ann Buziak, Kevin Passerini, William Cruse and Timothy (“Timmy”) J. Miller, Blank Rome LLP
• mass downloads of documents in the months prior to the employee’s departure; • unusual log-in activities, whether suspicious first- time logins or logins using others’ credentials or non-company devices; • any evidence of copying or transferring data to a USB drive or to unauthorised cloud applications; • directly transferring data from one device to another (such as a phone data transfer); • comparisons of data access with temporal use of personal email accounts or non-company cloud accounts, as reflected in internet activity data; and • mass deletion or wiping activity, which often destroys the associated metadata to track how data was accessed or copied. Also note that if the data at issue has been trans - ferred to a non-company device or application, then it may be necessary to hire a third-party forensic vendor to remediate (ie, identify, retrieve, and permanently remove) the data from the personal device or appli - cation. When compared to long-term litigation costs, this approach can provide an efficient, cost-effective method to protecting a company’s trade secrets and other sensitive, confidential data and avoiding pro - tracted litigation and discovery disputes. Step three: initiating a targeted litigation strategy Sometimes disputes can be resolved amicably. However, there will inevitably be instances where an employee attempts to take information from the com - pany to use it for the employee’s own benefit or for the benefit of a third party, such as a competitor. By
taking all of the steps described above, a company will equip their in-house and external legal teams with information and evidence that will set the company up for success in litigation. Given that trade secret misappropriation often warrants a rapid response to avoid irreparable harm, the upfront identification of misappropriated trade secrets and attempts at remediation, where possible, prove valuable in court – and, if in federal court, in meeting the heightened pleading and injunction standards in the Third Circuit. Equipped with this information, an effective legal team can file appropriate claims for trade secret misappro - priation with parallel breach of contract claims under any applicable agreements (including confidentiality, return-of-property, and restrictive covenants, as may be applicable), and other related state-law claims, while also meeting the rigorous standards for plead - ing and seeking interim injunctive relief. Summation Developments in trade secret law and technology compel companies to take a forward-thinking and proactive approach to protecting their trade secrets and other sensitive, confidential business information on the devices, platforms, and programs used to con - duct their business and to access, store, or transmit such information. By taking a holistic approach to those protections – from onboarding employees, to offboarding employees, and conducting appropriate monitoring and investigations – companies can better protect their trade secrets and maintain their competi - tive position in the marketplace while also positioning themselves for litigation as a last resort.
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