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Have you been compromised?

Have you been compromised?
Have you been compromised?

Every business has employee turnover. Every business will at some point encounter circumstances which cause the employer to question whether the former employee took confidential information with them upon their departure. When an employee with access to confidential information leaves and is quickly hired by a competitor, the former employer should commence an investigation.


Often employers will review the former employee’s email to determine whether there was suspicious activity in the weeks or months prior to termination. Sometimes the question does not arise until the former employee begins working for a competitor. This article can be taken as a warning to employers about what not to do as well as tips for taking action which will assist you in determining whether confidential information has been misappropriated. Keep in mind that it is not always clear whether confidential information has been misappropriated. The employer should also consider that whatever steps are taken must also enable your counsel to prosecute a case against the former employee and, oftentimes, the competition as well.


When theft is suspected
Enjoining the former employee from use or distribution is crucial. When theft is suspected, the employer has the option of seeking an injunction from the court to enjoin the former employee and the competitor from misappropriating, disclosing or using any confidential information belonging to the former employer. Often the initial step is to request a temporary restraining order. State laws vary; in Illinois, the former employer needs to raise a “fair question” as to the harm threatened and the necessity of the requested injunctive relief. Raising a fair question can come in the form of circumstantial evidence whereby the employer demonstrates, for instance, that a former employee used USB devices very near his or her termination and that the employee was less than truthful during an exit interview.


An injunction is just one of the initial steps in the litigation process. You still have to prove a case down the road which means you have to demonstrate that your confidential information was misappropriated by the former employee.


Of course, litigation is not the only answer. It is sometimes possible to negotiate an agreement with the former employee and/or the new employer. In every case, however, information as to what was taken and when is crucial. The same steps should be taken to preserve information even if litigation is not the avenue through which the goal is reached.


Don’t touch that computer!
Employers often take a wrong first step that can impair the case against the former employee. Typically an employer suspecting trade secret theft will ask their IT department to access the former employee’s computer. DO NOT DO THIS.

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