Over the past two years we’ve seen a major increase in the number of clients who call us who are in this position. Yes, it’s true that most of our cases are still from corporate clients who are concerned that their recently departed employee(s) have inappropriately taken their company’s intellectual property or trade secret information (how they research, develop and make their “widgets” for instance). But I can tell you from experience that there are a number of times that the company lobs the accusation at the recently departed employee yet there is little to no evidence in the data to support the accusation that they actually stole their IP. Bear in mind there are not many of these instances, as typically where there’s smoke there’s fire as the adage goes, but it’s enough that I can note it here from experience. What we find oftentimes is that while there can be a nugget of truth in you possessing some form of data that doesn’t belong to you upon exiting, many times it’s done unintentionally. Much of today’s “always connected” and working remote business world contributes to this. Have you accounted for all the thumb drives you used while in their employ? Have you turned over all emails you sent yourself to work on materials after hours or on the weekend or while on vacation? What about when you accessed your company’s webmail from your personal computer at home because you forgot your laptop in the office? Perhaps you’ve done all those things which have contributed to your ex-employer’s angst and inadvertently helped create a platform to accuse you of wrongdoing. Either way, we’ve assisted a number of folks in the same position by bringing clarity to what actually happened to the data you retained by speaking factually about it, not emotionally.
With that in mind, here are some pointers. First and foremost, don’t panic and start making rash decisions and statements. Second, don’t delete or change any data that you do have even if it’s unrelated to your former position. Third, it’s important to find a strong advocate for yourself by retaining quality, and case specific counsel, regardless of your innocence or guilt in the matter.
Breaking these points down a bit, it’s first of all important to keep your wits about you and not be too rash when you’re first put on notice by your former employer. And while we’re not attorneys, and none of this is legal advice, we’ve seen too many cases where the accused initially being in a state of shock, anger and/or fear started making decisions on their own about what to do with material they may still have. They start searching all their computers and devices and opening documents and emails they haven’t touched in some time (years sometimes) thus changing some things to their possible detriment. Data that may have appeared dormant and unimportant has now been red flagged as possibly pertinent to the case. At the other end are the individuals who are extremely forthcoming with information. Sometimes too forthcoming, setting themselves up to be taken advantage of.
Second, as previously mentioned, it is important to not start your own mini investigation of all your devices. Or, if you already know that you have things you probably shouldn’t, then it’s important to not start wholesale moving and/or deleting. Doing so could help the other side paint you in an unflattering light that might be construed as intent to deprive them of data that is theirs. When you start making changes to files in your control you start limiting what you can say about their existence, like deniability for instance if you were unaware that you still had them. File and folder locations, as well as the associated dates/times they were created, moved and accessed tell their own story. You can help maintain control of that story by not changing it at the outset. Even if you’re just trying to discover what you may have, going about it by poking and prodding your systems and devices is the wrong way. We need to make a forensic copy of these devices and do a forensically sound investigation, one that will stand up to scrutiny and the court if need be.
This brings us to the third and final point. It’s almost always better to deal with circumstances straight on. Don’t bury your head in the sand and hope this all just blows over; you need experienced council involved in this. You’re not an attorney, and as stated earlier, neither are we. As such, an understanding of the full ramifications of your actions, past or present, and how to present them is imperative. Your attorney is your advocate. Their involvement could mean the difference between merely sending a letter to your ex-employer to extinguish the allegation, or being drug into a six figure litigation. If you don’t already have a relationship with an experienced attorney, that’s ok, we fortunately have a number of them we can confidently recommend. I would caution you about just picking one randomly, as there is not only a wide range of attorney specialties like many other professions, but there is also a wide range of competency and knowledge of matters that might be heavy in technology. If you’re in a situation as described and looking for some expertise you can trust, let us know. We’re here to help!