UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
3. Preventing Trade Secret Misappropriation 3.1 Best Practices for Safeguarding Trade Secrets There are no specifically sanctioned “best prac- tice” guidelines in the UK regarding safeguard - ing trade secrets. The following are merely some suggestions. Implementation of best practices may include the following. Physical steps: • building access controls; • ID security check; and • security guard monitoring.
Furthermore, it is possible that a fiduciary rela - tionship will in fact be found with respect to (eg, the directors of) the joint venture, such that the parties will owe each other fiduciary obligations, including the duty of confidence. In Ross River Limited v Waveley Commercial Limited (2012) EWHC 81 (Ch), the High Court set out two propositions for identifying the exist - ence of a fiduciary relationship: • a fiduciary is someone who has undertaken to act for, or on behalf of, another in a particular matter in circumstances that give rise to a relationship of trust and confidence; and • this concept captures a situation where one person is in a relationship with another that gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise their position in a way that is adverse to the interests of the principal. Therefore, it is likely to depend on the nature of the joint venture and the way in which rights and duties are divided, and information disclosed, as to whether the relationship between the parties engaged in a joint venture will be considered a fiduciary one. 2.4 Industrial Espionage Industrial espionage is a lay rather than legal term in the UK. The type of additional claims available will depend on the type of industrial espionage and the type of actor (ie, state/foreign private individual/domestic citizen). For exam - ple, criminal claims may be possible in relation to “fraud by abuse of provision” under Section 4 of the Fraud Act 2006 or offences under the Computer Misuse Act 1990. Civil trade secrets claims under common law/equity and the Direc - tive/Regulation are also likely to be available.
Digital protection: • dedicated VPNs; • printing logs; • USB drive restriction; • remote access restriction; and • password protection. Policies/agreements: • detailed pre-employment screening; • regular training; and • division of information. 3.2 Exit Interviews
Exit interviews are quite common in the UK. Depending on the circumstances of the person’s position and departure, a confirmatory confiden - tiality agreement may be signed. Employers will usually ask where the employee is going, but the employee is under no obligation to provide that information.
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