Case Scenario:
Unlike other areas of intellectual property law, the protectability of trade secrets is defined by state law. To date, forty-seven states have adopted the Uniform Trade Secrets Act (UTSA), as drafted by the National Conference of Commissioners on Uniform State Laws. The USTA provides that “actual or threatened” misappropriation may be enjoined (prevented by the courts). However, despite almost nationwide adoption of the USTA, state law differs greatly concerning which acts may be enjoined as “threatened” misappropriations.
Many states have adopted the “inevitable disclosure doctrine,” which allows a trade secret owner to enjoin a former employee from working for a direct competitor in a similar capacity, despite the trade secret owner’s inability to prove “actual or threatened” misappropriation of trade secrets. The inevitable disclosure doctrine is based upon the recognition that the employee’s new job duties will “inevitably” cause the employee to rely upon knowledge and disclose the trade secrets gained in their former employment. (The courts that have used the doctrine liken the situation to that faced by a football team whose key player leaves to play for another football team---and takes the play book with him!)
By recognizing the notion of inevitable disclosure as being within the UTSA’s provision of “threatened disclosure,” reliance on this principle has given employers greater leverage over departing employees and a powerful weapon against competitors who lure away valuable employees.
Although a number of jurisdictions have accepted the inevitable disclosure doctrine in some form or another, other jurisdictions have either hesitated or completely refused to apply the doctrine (Florida appears to be in the latter category). If you are the employer with trade secrets to protect, you may favor the expansion of the doctrine. Of course, that same employer seeking to prevent its employees from leaving to a competitor may also find itself, in another situation, in the position of the hiring company and thus may have to argue against the doctrine. If you are an employee wanting to make a lateral move to another company, you would oppose such expansion. Where do you stand on the question of inevitable disclosure? Discuss your views.