Lesson 4: Practical Measures for Protecting Confidential Information/Trade Secrets
Take “reasonable” measures to guard the secret, but what is considered reasonable will vary, depending on the circumstances.
Establishing minimal levels of protection will likely result in the confidentiality being lost and, with it, your legal entitlement. Too much protection may be cumbersome and costly and may stifle the creative use of the confidential information/trade secrets.
The goal should be to take strong, proactive measures to protect your sensitive information as it demonstrates to a court that the information is valuable to you and you are serious about protecting it. A court will therefore be more likely to protect you against disclosure and misuse.
We will illustrate what reasonable protections may look like in the context of each of the scenarios below.
Scenario 1: Carelessness
The CEO of Acme goes to meet with ABC Inc., with whom she hopes to partner, to discuss a new secret method for manufacturing a particular drug. When she registers with the front desk and fills out ABC Inc.’s extensive security questionnaire, she leaves a folder with information detailing the secret method, labelled “Confidential Information,” in plain sight in the reception area. The reception area has other people sitting there, and the folder is out of her sight.
Scenario 2: Open Offices
Acme has recently moved into a building where one of its competitors’ offices is on the same floor. Acme has always had an open-door policy, so it encourages people to work in an open space rather than in separate offices. The result is that people leave their materials on their desks and tend to have conversations at their desks. These conversations can be easily overheard, even outside Acme’s premises.
- physically restricting access to the locations where confidential/trade secret information is stored and using encryption or passwords to protect the security of the information;
- implementing physical protections such as installing security cameras and having closed-off rooms where confidential discussions can take place;
- marking documents and other media that contain confidential information/trade secrets with a conspicuous label such as “Confidential/Proprietary,” which is helpful to remind parties who have access to these materials about their obligations to protect the materials’ secrecy; and
- using code names so that people can refer to something without disclosing details about it, which also reinforces for people the secrecy associated with the information that is the subject of the code name.