Employers often go to great lengths to protect company documents and communications concerning and discussing confidential trade secret information. But what happens when employees leave, bring a whistleblower claim, and the employer learns they have sent themselves numerous confidential communications containing trade secret information? What about when an employee later attempts to introduce those documents as evidence in a subsequent whistleblower lawsuit? Unfortunately, employers often have limited options in this situation given various federal and state whistleblower protections in place.
While the federal Defend Trade Secrets Act (DTSA) amended the Economic Espionage Act (EEA) to provide a federal civil remedy against trade secret misappropriators, there is a carve-out providing limited immunity for purported whistleblowers. The DTSA states:
(1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made— (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
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