Multiple federal courts have recognized and applied the inevitable disclosure doctrine in cases brought by employers against former employees under the DTSA. The inevitable disclosure doctrine allows a business to temporarily enjoin the new employment of a former employee by a competitor on the theory that the employee learned confidential information while working for that business which the employee cannot possibly forget or refrain from relying on during her employment with the competitor. The application of this doctrine under the DTSA is controversial for two reasons. First, some states refuse to recognize the inevitable disclosure doctrine due, in part, to its restrictive effect on labor mobility. Secondly, the application is controversial because some practitioners thought that the language of the DTSA preempted the application of this doctrine at the federal level.
Facing the Inevitable: The Inevitable Disclosure Doctrine and the Defend Trade Secrets Act of 2016
M. Claire Flowers
March 17, 2019