Saturday, July 04, 2015

More on the Jawbone trade secret matter

A post at lexology goes into the Jawbone "trade secret" matter:

A problematic issue is the failure to explicitly identify "trade secrets" apart from the more general category of
"confidential information."

See previous IPBiz posts, including

Top Agent v. Zillow: need to plead trade secrets with specificity

Convolve/MIT lose on trade secret issue at CAFC

Protecting trade secrets

A would-be plaintiff in a trade secrets dispute must recognize that one of the first questions that both the court and the defending party will demand to have answered is ““what is the trade secret?”
This is explicit in California which requires the party claiming trade secret misappropriation to identify the trade secret with specificity before conducting discovery relating to the trade secret claim. Cal. Civ. Proc. Code §2019.210.

The lexology post also notes:

Exit Interviews with Teeth: The complaint reveals that at least one employee was pressed during an exit interview about retaining company materials and finally admitted to retaining a “Market Trends & Opportunities” presentation. Far too many exit interviews are perfunctory “So where are you going? Please sign this” time-wastes representing a blown opportunity to discern what documents might possibly be retained at home or on thumb-drives, what unusual downloading activities may have occurred in one’s final months, will you be performing substantially similar job duties for a competitor, etc. Jawbone seems to have opted for vigorous discussion with some of the flight to Fitbit employees.

Sound and Immediate Forensic Analyses: The complaint discloses findings of apparently immediately-performed forensic analyses on the departing employees work computers including detection of both software designed to wipe downloading activities as well as more ham-fisted manual wiping of system logs. Best practices dictate that such forensic investigation be performed by an independent vendor, not in-house IT. Because time is of the essence, an established protocol for such imaging should be at the ready and the vendor pre-selected.

The Lexology post is from the law firm: Carroll, Burdick & McDonough LLP


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