Managing Trade Secrets Risk In Light Of COVID-19

COVID-19 is bringing systemic change in the way businesses are operating and employees are working. With almost all of businesses' staff working remotely for the foreseeable future, companies face additional layers of risk to keep trade secrets and information confidential. There is, more than ever, a risk of businesses losing control of previously established trade secrets protection measures. We set out below some guidance on the heightened areas of risk and where businesses can try and limit their exposure.

Protecting trade secrets

The law will only protect information as a trade secret/confidential information where it meets all of the following requirements: (i) the information has been kept secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (ii) where it has commercial value because it is secret; and (iii) where it has been subject to reasonable steps, by the person lawfully in control of the information, to keep it secret.

The moving of staff to homeworking brings a number of risks to established trade secrets protection measures, such that there are increased risks of trade secrets information losing its confidential nature. These added risks and potential ways to mitigate them are set out below.

Areas of risk and ways to mitigate

Working Practice Risks Steps to Mitigate Non-corporate devices & Email Extensive homeworking can, due to some of the practical realities it brings, cause an increased use of personal devices and email for work purposes, including information being stored on personal devices and sent to personal e-mail addresses. This, given the likely lower security protections, and the fact it is leaving the corporate domain, can increase the risk of trade secret leakage. Ensure password protection and/or encryption policies are fully adhered to throughout the crisis Continue to remind staff of the importance of keeping corporate information away from personal devices and systems, except where it is fully in compliance with the company's BYO policies and procedures Enforce policies to the extent possible that documents should not be stored on personal devices and any that are deleted immediately Ensure workers are provided with appropriate equipment wherever possible to reduce the risk of non-secure devices being used Hard copy...