Over the course of several cases, Judge Mazzant from the Eastern District of Texas has emphasized the circumstantial nature of the evidence used to establish misappropriation of trade secrets. SPBS, Inc. v. Mobley, No. 4:18-CV-00391, 2018 WL 4185522, (E.D. Tex. Aug. 31, 2018) is a good example of the court relying on such circumstantial evidence to issue an injunction against a former employee accused of taking trade secrets.
In SPBS, SPBS’s former national sales director left SPBS to take a similar position with a competitor. Before leaving, however, the employee (1) deleted several email messages and e-folders, (2) lied about where he was going to work after leaving the company, (3) claimed not to know that he had signed a non-competition agreement, (4) sent work emails to his personal email address, and (5) failed to return a thumb drive that was believed to contain a back up of his SPBS computer. Given these facts and given that the employee had access to SPBS’s trade secrets, the court believed that it was likely he took SPBS’s trade secrets to his new employer.
SPBS is a good reminder that honesty is the best policy when leaving an employer. A departing employee should tell his employer who his new employer is—even if that employer is a direct competitor. Additionally, employees should never remove personal items from work computers without a witness. Instead, contact the employer’s IT staff to assist with the removal. Otherwise, it will likely be presumed that the files that were removed were sensitive work files and not files of a personal nature.