The previous blog post outlined some of the legal protections afforded to trade secrets. However, in order for information to qualify as a trade secret under the Uniform Trade Secrets Act (which Georgia and 46 other states have adopted), the information must be “subject of efforts that are reasonable under the circumstances in order to maintain its secrecy.” Simply calling information a trade secret will not suffice. You must take affirmative steps to keep the information
This blog post will focus on some steps you can take to protect your trade secrets.
One of the first steps a business should undertake is to determine what information constitutes trade secrets, and then designating this information as confidential and proprietary. Any hard copies of trade secrets should be stamped or otherwise marked as confidential, and electronic files should be clearly titled.
In addition to clearly labeling trade secrets, access to trade secrets should be limited to a “need-to-know” basis. Files containing trade secrets should be password protected, stored in locked cabinets or otherwise physically or digitally secured. The employer should provide notice to all employees who will have access to trade secrets that the company’s trade secrets are confidential. Such notice can be part of new hire training as well as periodic on-the-job training for current employees. Company policies regarding confidentiality and the handling of sensitive information should be clearly laid out in employee handbooks and other materials, both to notify employees and to serve as evidence if there is a challenge to trade-secret status.
Employees who will have access to trade secrets should sign confidentiality agreements and be reminded of the provisions of those confidentiality agreements upon termination of their employment. These agreement should prohibit the employee from disclosing the trade secrets at any time and prevent the use of the information after the employment relationship has ended. The Georgia Article addressing restrictive covenants (O.C.G.A. § 13-8-50 et seq.) provides limitations on the length and geographic scope of non-competition and non-solicitation contracts, but explicitly states that these restrictions do not limit the period of time for which an employee may agree to maintain information as a trade secret or the geographic area within which the information must be kept a trade secret. O.C.G.A. § 13-8-53(e).
With respect to independent contractors who will have access to trade secrets, the owner of the trade secrets should require the independent contractor to enter into a confidentiality and non-disclosure agreement. The confidentiality and non-disclosure agreement should contain obligations to return or destroy any confidential information at the end of the relationship. These contracts should also include an invention assignment clause to ensure that any trade secrets generated as a result of the engagement of the independent contractor will be the property of the owner.
If you have any further questions about how to secure your trade secrets or wish to speak to an experienced attorney for a free consultation, please contact Douglas Park Law at (404) 919- 1957.