Trade Secret Protection Attorneys
Qualifying the information, documenting the reasonable measures, and writing the agreements and the onboarding and offboarding steps that support the claim later, for businesses in Florida, Washington, D.C., and Massachusetts.
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 often the one disputed.
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. A consultation is free.
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 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) require, respectively, efforts that are reasonable under the circumstances to maintain secrecy and reasonable efforts to maintain secrecy.
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. Measures that exist only in a policy nobody applied are the ones that fail.
Confidentiality and Assignment Agreements
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.
The Notice the Federal Act Requires
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. Section 1833(b)(4) defines employee to include a contractor or consultant.
Onboarding Without Importing a Secret
Hiring from a competitor creates exposure in the other direction. 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 not to bring prior employer documents and a review of the new hire’s existing obligations.
Offboarding and Removing Access
Departures are where secrets actually leave, so access should be removed on the departure date, because the federal computer access statute turns on whether the person was authorized to reach the information. 18 U.S.C. 1030(a)(2) reaches intentionally accessing a computer without authorization or exceeding authorized 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 between Florida, Massachusetts, and the District of Columbia.
Federal law applies everywhere. Section 1833(b)(3)(D) applies the notice requirement to agreements entered into or updated after that subsection was enacted on May 11, 2016, so every agreement signed or updated since then needs the notice, whatever template it came from. 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. The CHOICE Act, sections 542.41 to 542.45, separately governs covered agreements with high earners.
Massachusetts. A noncompetition agreement must meet the minimum requirements of chapter 149, section 24L(b), including a writing signed by both parties that expressly states the employee’s right to consult counsel, and 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 October 1, 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 in an agreement entered into on or after that date is void. A covered employee is one who is not a highly compensated employee and who spends more than 50 percent of work time for the employer in the District, or whose employment is based in the District and who regularly spends a substantial amount of work time there and not more than 50 percent in another jurisdiction, as defined in D.C. Code 32-581.01. 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.
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I would recommend working with Aaron and team.”
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As a result, we’ve continued to rely on them as our go-to legal counsel for ongoing corporate matters.”
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The attorneys were incredibly responsive, guiding me through every step of the process with clarity and professionalism.
They took the time to address all my questions and concerns, ensuring that I felt confident in each decision we made. Their attention to detail and thoroughness were evident in the documents they prepared, which gave me peace of mind. What stood out most was their commitment to my vision. They not only provided legal advice but also offered valuable insights into the industry, helping me navigate potential challenges and seize opportunities.
Overall, working with IBL was a fantastic experience. They made a complex process manageable and stress-free. Thank you for your outstanding support.”
Client testimonials describe individual experiences. You may not obtain the same or similar results.
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. The list should be short enough to defend.
What is done today to keep each item secret: marking, storage, encryption, physical access, 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.
Employee and contractor confidentiality terms, invention assignment, and any restrictive covenant the jurisdiction allows, each carrying the notice the federal act requires.
What a new hire signs, what they are told about prior obligations, what they are instructed not to bring, and the record that the instruction was acknowledged.
The exit conversation and its written record, device and account return, credential removal on the departure date, and a review of file activity in the final weeks.
The inventory, the measures, the access records, the signed agreements, and the dates of each annual review, kept in one file for 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. Florida enforces restraints meeting the requirements of Florida Statute 542.335, and for covered high earners the CHOICE Act, sections 542.41 to 542.45. 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; highly compensated employees are outside that ban, subject to the statute’s conditions. Confidentiality protection is available in all three.
Businesses in Florida, Washington, D.C., and Massachusetts. Call (202) 860-1210 or describe what you need protected through the form. Free consultation. We will review 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 with Industria Business Lawyers. Whether particular information qualifies as a trade secret depends on its specific facts and the law in force. Statutes cited are subject to change.