It’s All in Your Head

You followed the rules. You did as you were told.  You didn’t take any documents from your former employer when you left your job. Excellent!

But, what about your former employer’s trade secrets and confidential information that you remember? You can’t make yourself forget the information.  And, you didn’t take any documents containing that information.  So, it must be okay to use the information at your new job, right? WRONG!

Trade secrets and confidential information of your employer are no less trade secrets and confidential information simply because they are not reflected in documents. If it’s your former employer’s trade secrets or confidential information, treat it as such – and don’t use it!

How do we say this in lawyer speak?  Here you go (under Massachusetts law):

Although the absence of any taking of a physical manifestation of a trade secret or confidential information is “significant,” such information can be protected even if only retained by a former employee in his or her memory. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972); Woolley’s Laundry, Inc. v. Silva, 304 Mass. 383, 389–90 (1939) (“We fail to see why complainant is entitled to less protection when the names on the list are carried off in the employee’s memories.” (quoting Empire Steam Laundry v. Lozier, 165 Cal. 95 (1913))); Sherman v. Pfefferkorn, 241 Mass. 468, 472, 475 (1922) (restraining former employee from soliciting customers where he learned their names and addresses from the employer, even though no customer list was provided or taken); Chiswick v. Constas, 2004 WL 1895044, at *2 (Mass. Super. Ct. June 17, 2004) (Kane, J.) (quoting Jet Spray Cooler, Inc. v. Crampton, 361 Mass. at 840 and citing Velo-Bind, Incorp v. Scheck, 485 F. Supp. 102, 107 (S.D.N.Y. 1979) (“[a]ctual physical copying is not essential to establish an unlawful appropriation of trade secrets”)); Prof’l Staffing Group, Inc. v. Champigny, 2004 WL 3120093, at *2 (Mass. Super. Ct. Nov. 18, 2004) (noting that a memory of nonconfidential customer information does not violate any recognized duty); Oxford Global Res., Inc. v. Guerriero, 2003 WL 23112398, at *9 (D. Mass. Dec. 3, 2003) (Woodlock, J.) (noting that plaintiff might, after discovery, be able to prove that defendants had memorized confidential information, which would then warrant injunctive relief). But see Am. Window Cleaning Co. v. Cohen, 343 Mass. 195, 199 (1961) (discharged employee may use remembered information to solicit clients) (cited in Wordwave, Inc. v. Owens, 2004 WL 3250472, at *3 n.4 (Mass. Super. Ct. Dec. 7, 2004) (Muse, J.)); HX In Boston, LLC v. Berggren, C.A. No. 08-510BLS2 (Mass. Super. Ct. Feb. 8, 2008) (the parties did not challenge that a former employee “could use anything ‘in his head,’ i.e., what he remembers from the [confidential] information he developed”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dewey, C.A. No. 04-1005 (June 30, 2004) (Agnes, J.) (employee permitted to use information in his or her memory); Boston Partners Asset Mgmt., L.P. v. Archambo, C.A. No. 01-3078-BLS, at *5 (Mass. Super. Ct. July 19, 2001) (van Gestel, J.) (information in employee’s head was not a “misappropriation”).

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