Summary:
Most trade secret cases aren’t lost in court. They’re lost in the first 48 hours after the employee walks out the door. Being ready to protect your code, customer data, trade secrets, and proprietary files can dramatically affect a company’s rights. This is a companion piece to our posts on building confidentiality infrastructure and creating a culture that treats IP protection as a business priority. Those pieces address the foundation. This one addresses what happens when the foundation is tested.
When the Clock Was Already Running–a Cautionary Tale
In 2016, Anthony Levandowski quietly resigned from Google. What Google didn’t know is that in the months before he left, Levandowski had downloaded nearly 10 gigabytes of its proprietary data related to its self-driving car program, which he used to launch a startup. Uber acquired that startup for nearly $700 million and immediately installed Levandowski as head of its autonomous vehicle program.
Google didn’t discover the theft until one of its own suppliers accidentally copied a Google engineer on an email containing an Uber schematic. The ensuing civil case settled for hundreds of millions. The criminal case resulted in a guilty plea. The presiding judge called it “the biggest trade secret crime I have ever seen.”
Most companies facing this situation have far less cushion than Google. But proportionally, the stakes can be just as high–and unlike Google, your business can be ready.
Before the Clock Starts
A fast response is essential when an employee departs. But success typically depends on groundwork laid beforehand: specific NDAs signed at hire and updated at promotion; assignments of IP and inventions; tiered access controls so employees reach only what they need; confidentiality markings on sensitive files; and documented offboarding protocols requiring the return or deletion of company materials.
Critically, courts look at how your company actually treated its information: not just what your agreements say. Loose access, unmarked files, and unenforced policies can sink a claim before it gets started. More on building that foundation here and here.
The 48-Hour Clock
- Hours 0–2: Lock it down. The moment a departure is confirmed, revoke all system access — credentials, email, shared drives, cloud platforms, VPN, and any third-party tools. Do this quickly. Then stop. Do not wipe the workstation, delete accounts, or reorganize anything. If you believe the employee may have taken sensitive data, or if this was someone with high-level access embedded in key areas of the business, contact counsel and issue a litigation hold to IT and HR immediately. Preserved evidence wins cases; accidentally destroyed evidence can lose them.
- Hours 2–8: Build the forensic picture. With access locked, IT should review what actually moved: file transfer logs, email forwarding rules set up before departure, print history, connections to personal cloud storage, and remote access logs. Metadata–who opened what, when, how, and where they sent it–is often the most powerful evidence in trade secret cases. HR should simultaneously pull agreements, policy acknowledgments, and exit documentation. If the employee disclosed a future employer, that’s immediately relevant. Even if they didn’t, checking their social media to see where they’ve landed, and in what role, is important.
- Hours 8–24: Assess scope and interview carefully. Once the initial forensic picture exists, controlled conversations with former colleagues can fill in gaps. But proceed carefully, coordinated through HR and counsel so that privilege can attach where appropriate. The objective: identify what was taken, define its competitive value, and understand specifically how a competitor could use it.
- Hours 24-48: Maybe contact the new employer: The new employer may be unaware of the situation–or if aware, may be scared off if called out. Well-run companies typically have policies prohibiting employees from purloining a former employer’s confidential materials. A well-crafted communication to the new employer frequently produces a cooperative response and may resolve the matter without litigation. Timing and tone matter, although this step should be taken carefully on advice of counsel, particularly if a court filing is in the works.
- Hour 48: Decide if you need to file. With a preliminary record assembled, counsel can assess the options for emergency legal relief. In fact, your attorney may have already been paralleling a complaint while the other steps are being followed. Courts can move quickly when the facts support it: a temporary restraining order can halt use or disclosure of the stolen information; a preliminary injunction can extend that protection; and both federal and state law provide additional tools to lock down affected information. These are powerful remedies, and courts treat them accordingly, which means they require well-assembled facts and a clear showing that the legal standard for relief has been met.
Act Now, Not Monday
Trade secret disputes move quickly on all sides. Every hour information bleeds is an hour it may be used, shared, or built into something you can’t unwind.
Baker Jenner works with businesses navigating urgent matters involving departing employees, confidential information, and requests for emergency relief. Contact us at (404) 400-5955.
FAQ: Trade Secret Incident Response
What qualifies as a trade secret?
Source code, customer lists, pricing models, product roadmaps, and internal strategic plans can all qualify — if the company genuinely treated them as confidential. Value alone isn’t enough.
Why does delay hurt legally?
Courts evaluating emergency relief consider whether the company acted with urgency. Even a few days of delay can undercut the argument that the harm is truly irreparable.
What does a court want?
The judge is going to want to see that you cared as much about the information as you are asking the court to care now that you’ve filed suit.
What emergency tools are available?
Depending on the facts, a TRO, preliminary injunction, and other remedies are available under the DTSA and applicable state law.
This article is part of a series on protecting confidential business information. See also: Acting Quickly to Enforce Confidentiality and Enhancing Intellectual Property Protection Through Employee Engagement and Culture.
Baker Jenner LLLP
