If you are an employer, you need to be careful what you say about ex-employees and who you say it to. In Downing v. Burns, a recent 14th Court of Appeals decision, Deborah Downing resigned from her job as an assistant to Don Burns. After she resigned Don Burn’s attorney wrote Deborah Downing a letter accusing her of having copied confidential, proprietary marketing plans and other sensitive documents and demanded their return. Downing denied the accusation, but admitted having copied 4 pages of the company’s policies and procedures manual. Don Burns and his wife then began telling people that Downing had stolen their company’s policies and procedures manual and that they would sue any company that employed Downing in the future. Then, the Burnses began telling people that Downing had stolen checks from the company.
Downing was fired from both jobs she held after resigning as Don Burn’s assistant. After learning that she was fired from one of her jobs because her employer did not want to risk being sued by the Burnses, Downing sued the Burnses for tortious interference and slander. The Burnses counterclaimed against her for theft of trade secrets. At trial, the jury found that the Burnses had tortiously interfered with Downing’s employment. The jury also found that the Burnses had slandered her. Finally, the jury found that Downing had not stolen the Burnses’ trade secrets. The appellate court agreed with the jury that there had been no theft of trade secrets because the 4 pages of the policies and procedures manual that she admitted copying did not contain or constitute trade secrets. In reaching this conclusion, the court focused on the Burnses’ lack of efforts to maintain the “secrecy” of the information. The appellate court also agreed that the Burnses had tortiously interfered with Downing’s employment and that they had slandered her. The appellate court remanded the case because the jury awarded more damages than the evidence supported.
Significance: Suspecting that a former employee has “stolen” documents or other company information justifies confronting the former employee, but it does not justify telling other people in the industry that the former employee is a thief and that you plan on suing his or her next employer. It may feel good when you say it, but as Downing v. Burns shows, that good feeling may fade away quickly. Also, when it comes to proving that a company document contains or constitutes a trade secret, you need to take steps to show the information is confidential and that you treated it as such. Possibilities are marking the document as “Confidential”, making the information password protected if possible, and taking any other reasonable steps to limit who has access to the document or information. In short, if it’s a secret, treat it like a secret.