[BreachExchange] Are Your Trade Secrets Gone Without A Trace?

[Audrey McNeil]

http://www.jdsupra.com/legalnews/are-your-trade-secrets-gone-without-a-63751/

Trade secret misappropriation presents a significant concern for
companies.  Pilfered trade secrets can have devastating effects on a
company’s business, especially when trade secrets that are central to the
successful operation of its business land in the hands of a competitor.

While the recipe for your company’s world-famous fried chicken might be
tucked away in a locked file cabinet inside a secure vault, chances are
many of your company’s trade secrets also exist in electronic form.
Customer lists, formulas, manufacturing techniques, pricing structures, and
computer algorithms all may exist electronically – on your employees’
computers, in their email, on their smart phones or tablets, or on thumb
drives tucked away in their desk drawers, briefcases, or pant pockets.

While most companies implement strong security controls and policies to
prevent misappropriation of trade secrets, sometimes such measures are not
enough.

With the miniaturization of external storage devices and inexpensive access
to cloud-based storage, it is increasingly easy for an employee to
intentionally or unintentionally pocket a company’s trade secrets.

When a company’s trade secrets are misappropriated, often it is not without
a trace.  Forensic examinations can help a company trace data files,
uncover trade secret theft, and provide valuable evidence to help the
company prevent further dissemination of the information.

Companies that suspect an employee has misappropriated its trade secrets
should act quickly to take possession of all of the company’s electronic
devices to which the employee has or had access and immediately preserve
computers, smart phones, tablets, thumb drives and external hard drives
used by the employee.  A prompt examination of those devices by a
well-credentialed forensic expert, coupled with a review of the results by
an attorney, could allow a company to minimize the harm that would
otherwise result from the theft of their trade secrets.

For example, a forensic examination of the computer used by a former
employee could help the company determine whether its files were moved to a
thumb drive days before the employee’s departure.  The moment a thumb drive
is inserted into a computer, the thumb drive will leave a trace file with
its serial number.  Often times, an examination of the computer also will
reveal the file names that were transferred to the thumb drive, allowing
the company to take immediate action to prevent further dissemination of
those files.

A forensic examiner may also be able to restore files that the employee
believed were long gone. Indeed, while employees seeking to prevent their
actions from being detected may delete the files from their computers
altogether, if a forensic examination of the computer is conducted
promptly, chances are good that the deleted files can be restored.

If you suspect trade secret theft at your company, quick action and a
thorough forensic examination may ensure that your company’s trade secrets
are not gone without a trace.
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