Trade Secret Protection Attorneys
Qualifying the information, documenting the reasonable measures, and writing the agreements and the onboarding and offboarding steps that hold up later, for businesses in Florida, Washington, D.C., Massachusetts and New York.
A trade secret is not a type of information. It is a status the owner earns by what it actually did to keep the information secret, and it can be lost without anyone taking anything. Under 18 U.S.C. 1839(3), information qualifies only if the owner has taken reasonable measures to keep it secret and it derives independent economic value from not being generally known or readily ascertainable through proper means. The state statutes are to the same effect. The first element is within your control, and it is the one that fails.
Industria Business Lawyers builds the protection side: identifying what the business holds, documenting the measures that support the claim later, writing the confidentiality and assignment agreements with the language the federal act requires, and setting the onboarding and offboarding steps that produce evidence rather than gaps. The work is done before a dispute, which is the only time it is cheap.
Not every confidential document is a trade secret, and a program that claims everything protects nothing. The starting point is deciding what is worth protecting.
Trade Secret Protection Work We Handle
Every statute in this area asks the same question about the owner’s own conduct before it asks anything about the taker. These are the parts of that question a business controls.
What Actually Qualifies
The statutes set a two part test, measured against the facts as they stood when the information was taken. The federal definition at 18 U.S.C. 1839(3) covers financial, business, scientific, technical, economic, and engineering information, however stored, where the owner has taken reasonable measures to keep it secret and the information derives independent economic value from not being generally known. Florida Statute 688.002(4) and D.C. Code 36-401(4) both require efforts that are reasonable under the circumstances to maintain secrecy. The practical question is which of your assets would survive that test today.
The Reasonable Measures Requirement
Reasonable measures are judged against the circumstances of the business, not a fixed checklist, so a small company is not held to a large company’s controls. What is consistently expected is that the information was identified as confidential, that access was limited to those who needed it, that people with access were under a written obligation, and that the obligation was enforced when tested. Massachusetts General Laws chapter 93, section 42(4) puts it usefully: the efforts must be reasonable under the circumstances, and may include reasonable notice. Measures that exist only in a policy nobody applied are the ones that fail.
Confidentiality and Assignment Agreements
Confidentiality and invention assignment agreements are the backbone of a program and survive where broader restrictions do not. Massachusetts excludes nondisclosure and confidentiality agreements, and invention assignment agreements, from the definition of a noncompetition agreement in chapter 149, section 24L, so they are not subject to that statute’s requirements. In the District of Columbia, a provision restricting an employee from disclosing, using, selling, or accessing the employer’s confidential or proprietary information is excluded from the definition of a non-compete provision under D.C. Code 32-581.01. Drafting these correctly keeps protection available in both jurisdictions.
The Notice the Federal Act Requires
A notice requirement in the federal act is missing from most agreements, and omitting it has a price. 18 U.S.C. 1833(b)(3)(A) provides that an employer shall give notice of the immunity set out in that subsection in any agreement with an employee governing the use of a trade secret or other confidential information, and subparagraph (B) allows compliance by a cross reference to a policy document setting out the employer’s reporting policy for a suspected violation of law. Under subparagraph (C), an employer that does not comply may not be awarded exemplary damages or attorney fees under 18 U.S.C. 1836(b)(3) in an action against an employee who was not given notice. Section 1833(b)(4) defines employee to include a contractor or consultant, so those agreements carry it too.
Onboarding Without Importing Another Company's Secret
Hiring from a competitor creates exposure in the other direction, and the offer stage is where it is cheapest to manage. Under 18 U.S.C. 1832(a), it is an offence, where the actor intends to convert a trade secret to the economic benefit of anyone other than its owner and knows the owner will be injured, knowingly to receive, buy, or possess that information knowing it to have been stolen or obtained without authorisation, and 18 U.S.C. 1839(5) defines misappropriation to include acquisition by a person who knows or has reason to know the information was acquired by improper means. The controls are a written instruction that no prior employer documents or files are to be brought or used, a review of the new hire’s existing obligations before the start date, and a record that both were done.
Offboarding and Removing Access
Departures are where secrets actually leave, and the window is short. The steps that matter are a documented exit conversation identifying the obligations that continue, return of devices and accounts, prompt removal of credentials and remote access, and a review of what was copied or forwarded in the final weeks. Access left open has its own statutory consequence: 18 U.S.C. 1030(a)(2) reaches intentionally accessing a computer without authorisation or exceeding authorised access to obtain information from a protected computer, and section 1030(g) gives a person who suffers damage or loss a civil action for compensatory damages and injunctive relief, subject to that subsection’s conditions.
Where the Program Has to Work
The federal definition is the same everywhere. The agreements that carry the protection are governed state by state, and what is permitted differs sharply between the places this firm practises.
Federal, everywhere. The federal definition and the notice requirement apply wherever you employ people. Section 1833(b)(3)(D) applies the notice requirement to agreements entered into or updated after that subsection was enacted, so the trigger is the next template revision. The limitation period at 18 U.S.C. 1836(d) runs three years from when the misappropriation is discovered or should have been discovered by reasonable diligence, so detection matters as much as documentation.
Florida. Restrictive covenants are governed by Florida Statute 542.335. A court will not enforce one unless it is set out in a writing signed by the person against whom enforcement is sought, and the party seeking enforcement must plead and prove a legitimate business interest, a term the statute defines to include trade secrets as defined in section 688.002(4) and valuable confidential information that is not a trade secret. For a restraint predicated on protecting trade secrets, the statute presumes five years or less reasonable and more than ten years unreasonable. Our non-compete page covers enforcement.
Massachusetts. A noncompetition agreement must meet the requirements of chapter 149, section 24L(b): in writing, signed by both parties, expressly stating the employee’s right to consult counsel, provided by the earlier of a formal offer or ten business days before employment begins, no broader than necessary to protect trade secrets, other confidential information, or goodwill, and stating a restricted period no longer than twelve months, or two years where the employee breached a fiduciary duty or unlawfully took property.
Washington, D.C. Under D.C. Code 32-581.02(a), since 1 October 2022 an employer may not require or request that a covered employee sign an agreement or comply with a workplace policy including a non-compete provision, and such a provision is void. Confidentiality protection remains available, because the definition of a non-compete provision excludes restrictions on disclosing, using, selling, or accessing confidential or proprietary employer information.
New York. Programs covering New York staff are handled with the firm’s attorneys admitted there.
Next question: How are trade secrets litigated? Then: What happens when a non-compete is challenged?
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How We Build a Trade Secret Protection Program
What the business holds that has value because others do not have it: formulas, methods, source code, pricing models, supplier terms, customer data, and internal research. Each item either earns the measures or does not, and the list should be short enough to defend.
What is done today to keep each item secret, written down as it happens rather than as policy says. Marking, storage, encryption, physical access, and what happens on shared drives and personal devices.
Who can reach each item, why, and through which system. Access that exists only because it was never removed is the most common finding, and narrowing it is usually the largest single improvement available.
Employee and contractor confidentiality terms, invention assignment, and any restrictive covenant the jurisdiction allows, each drafted to that jurisdiction’s requirements and each carrying the notice the federal act requires.
What a new hire signs, what they are told about their prior obligations, what they are instructed not to bring, and the record that the instruction was given and acknowledged.
The exit conversation and its written record, device and account return, credential and remote access removal on the departure date, and a review of file activity in the final weeks.
A single file that holds the inventory, the measures, the access records, the signed agreements, and the dates of each review. If a dispute comes, this is the exhibit that decides the reasonable measures question.
FAQ
01 • Protection What makes information a trade secret rather than just confidential?
Two things, and calling it confidential is neither. Under 18 U.S.C. 1839(3) the owner must have taken reasonable measures to keep the information secret, and the information must derive independent economic value from not being generally known to, or readily ascertainable through proper means by, someone who could obtain value from it. Florida Statute 688.002(4) and D.C. Code 36-401(4) apply the same two elements.
02 • Protection What counts as reasonable measures?
The standard scales to the business, so there is no fixed list. In practice the information is identified, access is limited to those who need it, everyone with access is under a written confidentiality obligation, and the obligation is enforced when tested. Massachusetts General Laws chapter 93, section 42(4) describes efforts that are reasonable under the circumstances, which may include reasonable notice.
03 • Protection Does a non-disclosure agreement by itself protect a trade secret?
It is necessary and not sufficient. An agreement establishes the obligation, but the statutes ask what the owner did to keep the information secret, and an agreement covering information that circulated freely inside the business will not carry that element. It works alongside identification, access limits, and the records showing both were real.
04 • Protection What notice does the federal act require in our agreements?
Under 18 U.S.C. 1833(b)(3)(A), an employer must give notice of the immunity in that subsection in any agreement with an employee governing the use of a trade secret or other confidential information, and a cross reference to a policy document setting out the reporting policy for a suspected violation of law will satisfy it. An employer that does not comply may not be awarded exemplary damages or attorney fees under 18 U.S.C. 1836(b)(3) against an employee not given notice.
05 • Protection Can we rely on a non-compete to protect our secrets?
Only where the jurisdiction allows one, and that differs across the places this firm practises. Florida enforces restraints meeting the requirements of Florida Statute 542.335. Massachusetts imposes the conditions in chapter 149, section 24L, including a restricted period of no more than twelve months in most cases. In the District of Columbia a non-compete provision for a covered employee is void under D.C. Code 32-581.02. Confidentiality protection is available in all three.
Businesses in Florida, Washington, D.C., Massachusetts and New York. Call (202) 860-1210 or describe what you need protected through the form. We will tell you which of your information could meet the statutory test today, what the gaps are, and what the agreements need to say.
This page provides general information about trade secret protection requirements under federal and state law and does not constitute legal advice. Reading it does not create an attorney client relationship. Statutes cited were reviewed on the date this page was last updated and are subject to change. Whether particular information qualifies as a trade secret depends on its specific facts.