Inevitable Disclosure and the DTSA

An employee leaving for a competitor may raise a concern of what trade secrets and confidential business information may go with the employee, and into the competitor’s hands. Some states’ trade secret laws modelled on the Uniform Trade Secret Act (UTSA) potentially allow an employer to stop a departing employee from working for a competitor on the theory that the employee would “inevitably” use the former employer’s trade secrets while working for the competitor. In its broadest form, the inevitable disclosure doctrine empowers a court to prevent a departing employee who knows a trade secret from working, even in the absence of evidence that the trade secret was actually communicated or disclosed to the employee’s new employer, and even though the employee never agreed to a non-competition agreement. In states where the doctrine is available, it is commonly applied at the beginning of a case when a temporary restraining order or preliminary injunction may be sought. Although potent if applicable, the inevitable disclosure doctrine has not been adopted in all states, and even where it is applied, it is applied inconsistently between states.