The inevitable disclosure doctrine is a way for an employer to prevent a former employee from working for a competitor under the principle that the employee would inevitably disclose his former employer’s trade secrets. The doctrine works under the idea that once a trade secret is disclosed, it cannot be regained. So, if allowing a former employee to work for a competitor makes a disclosure is inevitable, an employer should be able to prevent it from happening.

Does There Need to Be Evidence That the Employee Will Disclose the Trade Secret Information?

No, under the inevitable disclosure doctrine, intent is not the issue. Instead, the inevitable disclosure doctrine holds that even if the employee has no intention of betraying his former employer, the knowledge he has gained from his former employment will naturally give a new employer access to trade secrets. For example:

  • An employee working for Pepsi with knowledge of the company’s strategic business plans was prevented from working in a similar capacity at Quaker Oats, the maker of Gatorade. Although the employee had not taken any information illegally, his knowledge of Pepsi’s marketing and business plans would inevitably play into his work on Gatorade’s marketing and business plans. It would be nearly impossible for the employee to do his job at Quaker without using the trade secrets of Pepsi.

What Does an Employer Have to Show in Order for Courts to Apply the Inevitable Disclosure Doctrine?

To apply the inevitable disclosure doctrine, employers first must prove the existence of trade secrets. If the employer cannot prove he has a viable trade secret, there is no reason to worry about the former employee disclosing it. Once the employer has established the existence of a trade secret, the requirements for applying the inevitable disclosure doctrine vary from state to state:

  • Some states simply require you to show that there is a substantial likelihood that disclosure of trade secrets will occur
  • Some states require an additional showing of malicious intent or deception
  • Some states will not apply the inevitable disclosure doctrine at all

What Kinds of Remedies Are Available under the Inevitable Disclosure Doctrine?

The only remedy available to a former employer is a permanent injunction against the former employee. The inevitable disclosure doctrine does not entitle the former employer to any monetary damages or court fees.

Can My Employer Prevent Me from Accepting Any Job in the Same Industry as His Own?

Generally, the injunctions made under the inevitable disclosure doctrine must only be as broad as necessary. The courts try to balance the employee’s need to find work in the industry in which he is skilled with the employer’s need to protect his trade secrets. Often former employees will be restricted from certain activities in their new employment, but they will not be restricted from the employment itself.

Do I Need a Lawyer Experienced in Trade Secrets?

If you want to use the inevitable disclosure doctrine to prevent an employee from disclosing trade secrets, or if you are an employee and are worried you will be prevented from working in your industry because of the inevitable disclosure doctrine, you should consult a lawyer. An experienced intellectual property lawyer will be able to explain your rights and help you take the appropriate action. The inevitable disclosure doctrine can be very complex and differs in its application from state to state. An IP lawyer will be able to explain the laws that apply in your state.