Technology has simplified access to electronically stored information. Today, thousands of pages of data can be copied and transferred onto an inexpensive thumb drive or other computer device. As a result, information such as pricing, pricing strategies and methods, customer or client information, and even proprietary designs and formulas, can be downloaded and forwarded to a personal email address or another computer network with a few clicks of a mouse. Proprietary information that may have taken years to develop at significant cost will be at risk, along with a company’s competitive advantage. Intrusion into computer data can be ascertained and, in many instances, an intruder identified, with the aid of a forensic computer expert, albeit at significant expense. This article will address the relief available to an employer facing employee theft of electronically stored computer data.
Common-Law Remedies
A variety of common-law remedies exist that can address employee theft or misuse of computer information. These include (but are not limited to): misappropriation of trade secrets or confidential information; tortious interference with prospective economic advantage; and breach of contract claims, including a breach of duty of loyalty to the employer. Though common-law remedies are abundant, the level of proof required may be onerous. For instance, to succeed on a claim of misappropriation of a trade secret, an employer must first prove that the information qualifies as a “trade secret” and that the “trade secret” was misappropriated, i.e., the information comprising the trade secret was communicated in confidence by employer to employee; the secret information was disclosed by that employee and in breach of that confidence; the secret information was acquired by a competitor with knowledge of the employee’s breach of confidence; the secret information was used by the competitor to the detriment of plaintiff; and the plaintiff took precautions to maintain the secrecy of the trade secret. Rycoline Products v. Walsh, 334 N.J. Super. 62, 71 (App. Div. 2000).
