If you send an email to your personal gmail account, while working at a company, and the email contains company trade secrets, did you “acquire” those trade secrets using “improper means” in violation of federal trade secret law? This is the question addressed in Professor Hrdy’s new paper, co-authored with Charles Tait Graves, a Partner at Wilson Sonsini and Adjunct Professor at UCSF Law. The courts, it turns out, have been answering this question in the affirmative. So long as the employer has made clear to the employee that trade secrets cannot be transferred in this way, then the mere act of sending the email can constitute “improper” “acquisition” of trade secrets under federal and state trade secret laws. It does not strictly matter that the employee initially acquired the trade secrets lawfully through work or that the “improper acquisition” theory of trade secret liability was created with outsiders (not employees) in mind. The paper considers whether this legal theory has support in the statutory text, and what limits should be placed on the theory to avoid punishing employees for merely failing to follow their employer’s email and information security protocols.
The paper can be downloaded on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5092800