Another Idea for Improving the Defend Trade Secrets Act: Providing an “Off Ramp” to the Plaintiff Who Wants to Avoid a Costly Litigation
In a post last year, I proposed a solution for a recurring problem in trade secret litigation–namely, the situation where a former employee takes information but quickly regrets their conduct and looks for a way to resolve the dispute. As readers will recall, I proposed a “safe harbor” that would allow that former employee to provide disclosures and an injunction to address their former employer’s legitimate concerns. After my post, several colleagues, including my friends and fellow trade secret travelers Russell Beck and Mark Klapow, noted a potential dilemma for a trade secret owner. They suggested that I should consider a similar protection for plaintiffs whose suspicions about trade secret misappropriation never fully materialize or who face litigation costs that outstrip that litigation’s utility. To afford protection to those trade secret owners, this post proposes an “off ramp” procedure early in a trade secret dispute that would hopefully alleviate those situations.