Trade Secret Playbook for Post-Non-Compete World
With non-compete agreements increasingly unenforceable, companies must build robust trade secret management programs to protect proprietary information when key employees depart.
As non-compete agreements become increasingly difficult to enforce, particularly in California, companies must shift their focus to affirmative trade secret protection programs. This guide explains that relying on standard employment agreements and NDAs alone is insufficient. Instead, effective protection requires a systematic approach to identifying, segmenting, and monitoring access to sensitive information before an employee's departure.
Sophisticated clients and counsel care because the ability to obtain critical injunctive relief against a departing employee now depends on the company's ability to present compelling, contemporaneous evidence of both the secret's value and its misappropriation. Using litigation like Waymo v. Uber and Apple v. OpenAI as examples, the analysis shows how pre-existing controls—such as access logs, segmented data repositories, and forensic monitoring—create the factual record needed to secure an injunction that restricts specific work for a competitor without acting as an unenforceable prohibition on employment. Companies should audit and invest in these internal systems to ensure they can protect their core intellectual property when key employees join a rival.