By Walter P. DeForest and Marie A. DeForest

As a company, we know that you have spent considerable time and money developing your confidential information and trade secrets. Be sure you’ve taken steps to protect your information. At DKYB, we’ve represented companies and their employees in disputes involving confidential information and trade secrets throughout the country. The following advance preparation is very helpful in protecting your organization’s investment in its confidential information and trade secrets. A failure to follow the below guidelines may leave you vulnerable to an argument that your trade secrets and confidential information have not been protected in practice and, thus, are not subject to legal protection.

1. Create a catalog of trade secrets

• Know what your company considers confidential information and trade secrets.
• Maintain a catalog or list by generic type of your confidential information and trade secrets, which is an effective way to keep track of this information. You will need this if someone misappropriates your trade secrets or is using your confidential information. A company that is highly reliant upon technology will likely have a more detailed list.

If there is a legal dispute, having a list will be helpful to you. You’ll have a list of information that you can review if there are concerns about a breach. You’ll also have a written record showing that you considered this information to be confidential information and trade secrets. 

2. Develop a handbook or written policy that defines your confidential information and trade secrets and precludes the dissemination of such information to third parties absent an NDA

• Describe at a high level, by generic type, your confidential information and trade secrets in a written document that is provided to employees.
• If you have separate employment or IP agreements, include a similar definition.

Having a handbook or written policy that defines your confidential information and trade secrets makes your policy known and documented within your company as to what is confidential information and trade secrets and that such information is not to be disseminated to third parties without an approved NDA. 

3. Actually live to your handbook or written policy on confidential information and trade secrets

• Make sure it is well known by all your employees that you have a policy and that the policy must be followed.

One element of obtaining protection of confidential information or a trade secret is that your company protects the information from disclosure to third parties and the public.

4. Use a confidential information designation on documents consistently

• Only documents that are confidential information should have that designation.
• Be sure none of this information so designated has been made publicly accessible.

Review how your company designates documents as confidential information. Ensure that your company is not over designating or labeling documents as Confidential Information (or Proprietary Information) when such documents do not actually include such information. 

5. Know which employees have access to particular confidential information and trade secrets

• Only employees with a need should have access to a particular category of trade secrets.
• Maintain a record of employees that have access to your confidential information and trade secrets.
• If there are groups of employees that have access to certain trade secrets or confidential information and not others, you should have a record of which employees have access to what information.

Often, only certain employees need access to certain information. Don’t provide access to hard copy files or even files on a central server to an employee or category of employees that doesn’t require such access in order to do their job.   

6. Keep your confidential information and trade secrets secured

• Make sure your confidential information and trade secrets cannot be easily copied or removed from your premises.

Password protection on files, restricting access to the location where confidential information and trade secrets are stored, requiring visitors to sign-in and preventing visitors from having access to your premises on their own are methods to secure your information. 

7. Be mindful of your confidential information or trade secrets when providing tours of your premises

• Don’t disclose your confidential information or trade secrets to persons touring your premises unless they have signed an NDA.

Persons visiting your premises should not be able to view, observe, or have access to your confidential information or trade secrets (including any such information in your production processes) unless they have signed an NDA.

8. Use Non-Disclosure Agreements for persons outside your organization that have access to your confidential information or trade secrets

• A similar definition for confidential information and trade secrets to the one in your handbook or written policies should also be included in your NDAs.
• Maintain a list of persons or organizations that have signed NDAs with your company.
• Keep all executed copies of NDAs in one file.
• Be aware of expiration dates in your NDAs.

A person or entity that receives your confidential information or trade secrets should only be able to do so after they have executed a Non-Disclosure Agreement with your company that prohibits such persons from disclosing the information to third parties.