Performance marketers should always consider the steps they can and should take to protect valuable corporate assets, including trade secrets, confidential information, copyrights and patents.
Generally speaking, trade secrets include, without limitation, information, processes or devices having commercial value that are treated as confidential and are not known or disclosed to the public. Client lists and business plans are frequently the subject of trade secret disputes.
Comprehensive confidentiality, non-disclosure and computer/data usage agreements should be implemented in compliance with, but not limited to, the Defend Trade Secrets Act notice requirements. Such agreements should include clear terms and restrictions regarding data use and the immediate return of confidential information upon termination of employment.
Trade secrets should be identified and properly labeled, password protected and safeguarded. Access thereto should be limited to only those individuals with a legitimate need for it to perform their job functions. Employees should be strictly prohibited from downloading proprietary software and information onto portable devices without prior written authorization. Records should be maintained of employees that were granted such permission and return/destruction should be required immediately upon completion of designated tasks.
Failing to implement proper trade secret protections and secrecy measures, including the use of confidentiality agreements and other policies, can result in the loss of entitlement to classification of the asset as a trade secret. Such secrecy measures and confidentiality agreements should be required across the board, lower-level employees to contractors and consultants, to upper-level management and other third-parties with access to company trade secrets, alike.
Designate a trade-secret compliance officer responsible for enforcing trade secret compliance programs. The designated officer should ensure that employees are routinely advised of their legal obligations to protect company trade secrets.
Exit interviews with appropriate written correspondence advising employees of their continuing legal obligations and requiring the return of all propriety information should always be conducted.
Richard B. Newman is a digital marketing lawyer at Hinch Newman LLP