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.
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