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Non-Compete and Trade Secrets Blog

Posts from January 2011.

Distinguishing the New Jersey Supreme Court's decision in Stengart v. Loving Care Agency, a California Appellate Court has held that an employee's e-mails with her personal attorney sent through the employer’s workplace computer are not protected by the attorney-client privilege.

After surveying federal case law from around the country, the New Jersey Supreme Court recently adopted a "totality of the circumstances test" to be used to determine whether an employee has engaged in misconduct by taking confidential documents to support a discrimination claim.

After an unsuccessful attempt in 2010, a new and updated non-compete bill has been introduced in the Massachusetts legislature.

Litigation parties often fight over the extent to which the confidential information they produce in discovery may be shared by opposing counsel with their clients. Producing parties often seek to place "Attorney Eyes' Only" limitations on their documents. Parties sometimes overlook the possibility that such documents may find sufficient protection somewhere in the middle between marking them as “Confidential” and “Attorney Eyes’ Only.”

There is an ongoing debate in the courts over whether the federal Computer Fraud & Abuse Act (“CFAA”) applies in the context of departing employees who are at odds with their former employers. A recent opinion by the United States Court of Appeals for the Eleventh Circuit may be seen by some as adding to debate.

The effective date of Georgia's recently enacted non-compete legislation has been widely questioned. A recently introduced, but as of yet not passed, bill in the Georgia House aims to end the debate.

As 2011 rolls upon us, five non-compete and trade secret issues are likely to share the spotlight in the coming year. Keep an eye out for judicial and legislative action in Texas, California, Massachusetts on state-specific issues. Federal Courts are likely to adress the Computer Fraud & Abuse Act. And online social media is going to become a routine part of departing employee case law.

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