INEVITABLE DISCLOSURE: WHAT IS IT?
Sounds like something you tell your teenage son or daughter….”you better tell me what you did because eventually the story will come out.” But “inevitable disclosure” means something entirely different when you are talking about non-compete agreements and trade secrets.
In trade secret disputes, a company seeking to prevent a former employee from going to work for a competitor (or creating a new company which will become a competitor) often invokes the so-called doctrine of “inevitable disclosure.” An inevitable disclosure claim rests on the premise that because of the nature of the industry, the competitive positions of the former and current employers, the similarity of the employee’s position with the former and current employers, and various other factors, it is inevitable that the employee will use the trade secrets of the former employer in his/her new position unless the employee possesses an uncanny ability to compartmentalize information.
The doctrine gained more widespread use the Uniform Trade Secrets Act (“UTSA”) (adopted by Virginia at code section 59.1-337(A)), which expressly protects against “threatened” as well as actual misappropriation.
I am happy to report, and fortunately for employees, the state of Virginia does not recognize the doctrine of inevitable disclosure. (Government Technology Services, Inc. v. IntelliSys Technology Corp. et al., 51 Va. Cir. 55; 1999 Va. Cir. LEXIS 502 (1999)…at least according to the Circuit Court of Fairfax County.