TAKEAWAY: As the world becomes increasingly online in light of the COVID-19 pandemic, companies should revisit their IP strategies and implement policies or procedures to ensure adequate protection of their trade secrets in a virtual environment.

The COVID-19 pandemic has forced businesses to find new methods of communication for employees to keep in touch. Many organizations quickly turned to video platforms such as Zoom and Microsoft Teams for meetings previously conducted in person. While some employees are returning to their workplaces, many companies have implemented permanent policies to enable others to work remotely.

This new normal implicates trade secret protection. The Uniform Trade Secrets Act (UTSA) defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process” that (1) derives actual or potential independent economic value from being unknown to the public, and (2) is the subject of “efforts that are reasonable under the circumstances” to maintain secrecy.

Companies that previously relied on physical custody of information and on-site meetings to maintain secrecy have had to adapt to utilize online controls. A business that does not take reasonable steps to protect its confidential information cannot receive trade secret protection for that information. Reasonable steps to maintain confidentiality of communications between employees can include, for example, requiring a password for entry into a virtual meeting, placing participants in a waiting room to verify their identity, and taking attendance prior to starting the meeting. Companies should also make sure that all employees are aware which information is confidential and the procedures in place to maintain confidentiality.

Regardless of an organization’s remote work policies, it may be beneficial to review and update policies on interpersonal communication to mitigate risk and limit vulnerability to trade secret misappropriation or costly litigation.