Agreeing to Inevitable Disclosure?

As
discussed in our June 7, 2015 blog post, the Texas Uniform Trade Secrets Act
(“TUTSA”) became effective on September 1, 2013 authorized Courts to
employ injunctive relief to stop “threatened misappropriation.”  Such “threatened misappropriation” has gone
under many names, but is most commonly referred to as “inevitable
disclosure.”  Which when combined with
the Texas Supreme Court’s trend toward favoring enforcement of non-competes, has
tilted the balance to pro-business in the never-ending tug-of-war between
employer proprietary concerns and employee mobility interests.  This is a new weapon in the race to protect
the businesses’ proprietary information and we are already seeing cutting edge
businesses adapt.  As legal frameworks
shift, businesses should reevaluate their employment contracts to ensure the
highest levels of protection for their critical information

One
such consideration is whether to include “threatened misappropriation” directly
into an employee’s contract.  While it is
common place to find contractual clauses protecting various forms of
“Confidential Information” as defined in the relevant agreement, or
post-employment restrictions on competition, solicitation of clients, and
poaching of fellow employees, most employment contracts do not include any use
of the “threatened misappropriation.”  That is beginning to change.  The Vethan Law Firm, P.C. has begun to see,
and in appropriate cases begun to use clauses such as the one below.
Employee agrees that
Employee’s work for Employer’s competitor during the Non-Competition Period
would inevitably lead to Employee’s unauthorized use of Employer’s Confidential
Information, even if such use were unintentional.  Because it would be impossible, as a
practical matter, to monitor, restrain, or police Employee’s use of such
Confidential Information other than by Employee’s not working for a competitor,
Employee agrees that restricting such employment as set forth in this Agreement
is the narrowest way to protect Employer’s interest, and the narrowest way of
enforcing Employee’s promise not to use or disclose the Confidential Information
and/or Specialized Training.
While
this clause and clauses like it
have, as of the writing of this blog, yet to be tested in Texas courts, with
appropriate drafting and in the right context, using the “inevitable
disclosure” doctrine gives businesses one more weapon in the arsenal of
post-employment protections.