When a trade secret is stolen from its owner and posted on the Internet, the default rule is that it becomes a free for all. By virtue of the fact that it has been posted, it becomes public, and consequently loses its trade secret protection. The ensuing result is that independent third parties, including competitors, are entitled to use it, and the trade secret owner, despite years of laudable efforts to maintain the secret, suffers a fatal loss at the hands of a wrongdoer. The apparent injustice in that conclusion does not go unnoticed. Given that trade secret law is intended to regulate the moral and ethical pulse of competitive commercial behavior, this Article set out to explore the problem presented by trade secret Internet disclosures, and to identify whether at least in some circumstances it may be possible to retain trade secret status after a disclosure. Review of the various legal theories supports the general rule that trade secret status is lost upon disclosure. Nevertheless, considering the equitable and doctrinal considerations underlying trade secret law, and drawing from analogous attorney client privilege cases, there is support for an argument that trade secret status may be saved in some exceptional circumstances. Accordingly, I create and present a sequential preservation model, comprised of three factors, which may be used as a guide to decide which cases qualify for this exception. The model is drawn from and supported by the various legal issues surrounding the problem. While, in reality, it may only save a small number of cases from the general rule, its value lies in its use as an instrument that may be applied by courts to yield consistent results. It provides an avenue to work within the existing constraints of trade secret law to hopefully achieve more just results in compelling cases.
Elizabeth A. Rowe, Saving Trade Secret Disclosures on the Internet Through Sequential Preservation, 42 Wake Forest Law Review, 1–47 (2007).