In non-compete and trade secret litigation, key evidence of employee misconduct often comes to light through a forensic examination of the employee’s devices and accounts. These forensic reviews can identify suspicious activity, such as an employee forwarding information and documents to a personal email address, accessing large amounts of company files around the time of the employee’s resignation, or attaching flash drives and other external devices that may be used to misappropriate company files.

However, now that many companies have their employees working from home in response to the COVID-19 pandemic, employee actions that were typically considered “smoking guns” in the context of non-compete and trade secret litigation now could regularly be occurring in the work-from-home environment. It is not unusual to hear about employees working from home who have forwarded documents to their personal email accounts to print them from a home office printer, or who have used a personal or even a family member’s computer to work because they had technical difficulties with their company laptop. In other words, employees may now have more plausible excuses for actions that would normally be cause for concern, making it difficult for employers to evaluate whether company information is at risk.
Continue Reading Protecting confidential information in a work-from-home world

Following the recent Fourth Circuit opinion in WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012), the issue of whether the Computer Fraud and Abuse Act (CFAA) applies to the actions of employees (as opposed to hackers) may end up at the Supreme Court. The Act provides both civil and criminal liability for a person who “exceeds authorized access” to obtain information. This is a significant issue because the possible criminal sanctions available under the CFAA could be a powerful option available to employers seeking to protect their confidential information from being stolen by disloyal employees and used by competitors.Continue Reading CFAA May Not Protect Employer’s Confidential Information