We start with the assumption that your company has already laid the foundation for IP protection, including the creation of a rock-solid trade secrets program (for more on this topic, see the Fish Trade Secrets: Protection & Defense webinar).
What follows can help you to build an employee departure checklist to make sure valuable trade secrets aren’t lost.
Best Practice No. 1: Conduct a Thorough Exit Interview
Every departing employee who had access to your company’s confidential/trade secret information (whether directly or indirectly through co-workers) should undergo a thorough exit interview conducted by someone who has been trained to conduct such an inquiry. During the interview process, be sure to:
After conducting the exit interview, the interviewer should assess the employee’s credibility and make recommendations about whether further investigation is warranted. Also, as with any exit interview, it is best to have more than one person on the company side of the interview as a witness. Remember that severance payments that are not already mandatory can be made contingent upon good faith compliance with efforts to secure trade secrets.
Best Practice No. 2: Recover All Copies of Confidential Information
Before the employee’s departure, ensure that all company Confidential Information has been accounted for and recovered.
Best Practice No. 3: Preserve the Employee’s Hard Drive (or a forensic copy of it)
All too often, employers routinely wipe a departed employee’s computer hard drive clean and then return it to service, only to discover, months later, that the employee may have helped herself to vital company trade secrets before walking out the door. If an employee who had access to important confidential information leaves the company, preserving the employee’s hard drive for some reasonable period of time is vitally important (and, after all, hard drives aren’t all that expensive). Alternatively, the employer can, for a reasonable sum, have a forensic copy made of the hard drive (i.e., a bit-for-bit copy of the hard drive that will capture every “1” or “0” and even slack or blank spaces and deleted files and file fragments). Note, however, that a forensic image is different from a simple copy that most IT personnel will make, and one can only guess how much evidence has been destroyed by IT personnel who made a copy and quickly wiped a drive in an effort to manage what are ultimately trivial costs in comparison to even the first day of a lawsuit.
Best Practice No. 4: If in Any Doubt, Thoroughly Investigate the Employee’s Activities Before/After Departure
If at any point before or during the exit process, a concern arises that the departing employee may attempt to use company trade secrets or other confidential information in violation of her contractual commitment, then the employer, acting with the assistance of counsel, should promptly take steps to launch a thorough investigation.