REASONABLE STEPS TO
PRESERVE EXISTENCE OF A TRADE SECRET
Given that a trade secret
cannot exist in the absence of reasonable steps to
preserve the secrecy or confidentiality of the subject
mater, certain steps are highly advisable. In order to
attain the benefit of trade secret protection, whether
under the common law (in states such as New Jersey) or
under the Uniform Trade Secrets Act (as in such states as
Florida). Steps which have been deemed to be reasonable
to meet the threshold of secrecy or confidentiality
necessary to qualify for trade secret protection, either
under the common law or where the Uniform Trade Secret
Act is in force, include the following:
A.
Steps To Preserve Existence Of A Trade Secret
1. Utilize non-disclosure
agreements (NDAs) and the like with employees,
colleagues, consultants and third parties.
2. Mark all business
plans, documents, proposals and the like to which the
trade secret is applicable as "Subject to Trade Secret"
or "Confidential."
3. Take action against
employees who violate the secrecy terms of their
employment or take legal action against a third party if
it violates non-disclosure agreements.
4. Do not leave
confidential or sensitive material in places which can be
readily viewed by persons not having a "need to
know."
5. Limit access of
employees, contractors, consultants and the like to
specific aspects or elements of a trade secret or to the
entire trade secret.
6. Employ appropriate
security measures with respect to Internet and intranet
communications.
7. Create security access
levels which are job or project specific for employees,
contractors, consultants and the like.
8. Lock-up sensitive
materials when they are not in use.
9. Obtain clearly defined
NDAs with independent consultants, contract
manufacturers, engineers, artists, and the like involved
in development of products or prototypes which embody the
trade secret.
10. Require special
passes for access to email containing materials subject
to trade secrets.
11. Provide periodic
memos to employees, staff, consultants and the like
regarding sensitivity/confidentiality of trade secrets
and the like.
12. Keep a log of all
those having access to such sensitive
information.
13. Mark any documents,
and every page thereof, with a notice of confidentiality
or statement that the subject matter thereof is subject
to trade secret.
There are also certain
acts which one should not do in order to preserve a trade
secret.
B.
These include:
1. Posting a
description of the secret on a website, bulletin board
or the like.
2. Engaging in an act
which makes the content thereof available to the
public.
3. Demonstrating the
trade secret, if it comprises a process, in front of
customers or in a public media.
4. Discuss or display
of the trade secret with the media, or with a public
official or any third party who has not executed an
NDA or otherwise acknowledged the confidentiality
thereof.
5. Distributing or
advertising a product that in any way embodies the
trade secret.
