In late March, our Research and Operations team looked into practice areas that will not only continue at the same pace during the pandemic, but potentially thrive. One of these was trade secret matters, which our research showed will “continue to operate at near-normal speed and volume.”
While global economic meltdowns come in different shapes and sizes, one thing remains true: you have an incredible amount of global employee mobility. This spike in mobility leads to a big potential for trade secrets leaving corporate doors. That spike is furthered by the number of employees now working remotely and adopting working practices outside the realms of typical office security. Added to this is the fact that even before COVID-19, according to the Lex Machina 2020 Trade Secret Litigation Report there was a 30% increase in trade secret cases in the Federal and State courts between 2015–2017—and they have remained steady since.
I sat down with the manager of our San Francisco Forensic Technology and Consulting (FTAC) lab, Britton Moore, the other day in order to understand three key ways trade secret attorneys can best prepare for these investigations from a data perspective:
- Bring all relevant stakeholders to the table—early.
Trade secret matters require speed and coordination. A delay of mere weeks can result in sensitive and proprietary information spreading throughout a competitor’s IT systems. Close and direct communication among forensic professionals, the corporate IT and security team, corporate counsel, and any other key stakeholders (such as outside counsel) is paramount. Creating a clear but contained line of communication early so salient professional opinions can float to the top and strategy can be built is a must. These early matter assessment scoping calls may require short-term sacrifice with schedules, but they avoid long-term disjoint in communication.
- A custodian’s laptop and phone are still the best starting point.
While trade secret matters seem to involve new and constantly evolving communication platforms, the laptop and smartphone remain the “home-base” for most nefarious activity. They act as the pathway to most of the other data sources that a bad actor may have used. These data sources often contain essential evidence of misconduct, either direct evidence (e.g., file transfer history) or circumstantial evidence (including signs that files were intentionally destroyed).
- You may well end up speaking to your forensic technology consultant more often than your significant others.
One thing we have learned from these complicated investigations is the extreme reliance on phone/web-conferencing communication between the attorney and forensic expert. Develop strong, open lines of communication with your forensic partners. Identify your primary, secondary, and backup support, and keep them all copied in. Identify and share time periods during the week that work well for urgent, unplanned calls, and demand that your forensic provider memorialize the key information from these calls in an email after.
Finally, one bonus tip: always include the case name or case reference in the subject line of your communications with forensic providers and other relevant stakeholders if you want faster and more informed responses. It’s a small but crucial point.