Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters, and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing, and development.

Still, we, here at Miletti Law®, feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to create authoritative, trustworthy, & distinctive content. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. In this regard, this blog is Part XII of our ongoing series on “Trade Secret Misappropriation & Restrictive Covenant Claims.” In Part XI, we hammered on “Tortious Interference with Contract,” a key consideration a former employer should have when drafting a complaint & asserting a cause of action against the new employer.

How to Maintain the Confidentiality and Secrecy of Trade Secrets

When asserting a cause of action, one dilemma that employers face entails striking a balance between providing the court with sufficient and credible details and not allowing the prying eyes of the public into sensitive information such as trade secrets. For this reason, employers must keep a number of things in mind irrespective of the number of causes of action they have at disposal. In this regard, employers should ensure that:

  • The complaint is drafted with discretion – when the complaint is being prepared, adequate background concerning the significance and general nature of the stolen information should be provided, but the underlying data and matter should not be revealed. In some jurisdictions, an employer’s request for a temporary restraining order (TRO) and complaint is required to be particular in their description of the trade secret, failure to which the complaint may be dismissed entirely, and the TRO request denied altogether, primarily if the description provided in the trade secret misappropriation case is found to be too ambiguous.
  • Documents are protected – employers should consider entering into a stipulated protective order (also referred to as a confidentiality stipulation) with the defendant(s) at the commencement of litigation. In a standard stipulated protective order, no party should be allowed to disclose any document to a third party without approval and all documents produced in the court should be stamped “Confidential.” Further, based on how sensitive the information being revealed is, employers might also find it advisable to designate particular documents “Highly Confidential” or Attorneys’ Eyes Only (AEO). With regards to the latter, only the attorneys of both parties (plaintiff(s) and defendant(s)) should only be permitted to view the AEO-designated documents. Importantly, employers should, depending on applicable jurisdiction and court, engage their counsels in researching applicable law and reviewing documents that may need to be protected with any of these confidentiality designations.
  • Filing is made under seal if applicable – “filing under seal” implies that while they are not viewable in the public domain, the court and other parties are directly provided with the documents provided under seal. Accordingly, with some U.S. jurisdictions allowing filing under seal, employers should consider filing specific supporting and complaint documents under seal to ensure that the public does not have access to the particulars and details of the trade secret(s) in question. In many instances, it is the court’s discretion to assess the balance between the interest of an employer to keep the information secret and the public’s right to access so as to decide whether to grant a request to file under seal or not. Nonetheless, the employer must demonstrate a substantial reason why the information should be sealed. However, it is critical for employers to understand that while the risk that any information filed under seal will be unsealed in the future is always an impending predicament, an array of mechanical requirements and rules that may not apply in a typical lawsuit are often triggered when one litigates under seal.
  • The forum is chosen wisely – employers should remember that arbitration is often the end outcome of most lawsuits of this type, whether by contractual provision or not. Thus, especially when it concerns the question of how to ensure that the information remains confidential and out of the reach of the public, one may opt for arbitration because such forums do not attract the attention of the press and feature public domains. It, therefore, goes without saying that employers should not overlook and turn a blind eye to the technically confidential nature of arbitrations.

In the next blog and Part XIII of this series, we shall switch gears and focus on “Tips for Seeking Injunctive Reliefs/Injunctions (TROs & PIs).”

In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.