What is the difference between trade secrets, other confidential information, and general skill and knowledge?

On Wednesday (September 7), those of us attending The Sedona Conference Working Group 12 (Trade Secrets) Annual Meeting will be discussing (among other things) the difference between trade secrets, non-trade secret confidential information, and general skill and knowledge — and where and how the lines are drawn.

Does the Venn diagram accurately and appropriately summarize the relationships?

This is not just an academic issue.

Whether something is a trade secret, non-trade secret confidential information, or general skill and knowledge may dictate whether — and, if so, for how long and how — a company can protect it.

The distinction, even as just between a trade secret and confidential information (that is not a trade secret), may also make the difference between whether an employee who knows the information can be restricted in the work they can perform for competitor.

If, on the other hand, the information is or becomes part of an employee’s general skill and knowledge, the employee is free to use it — including to compete with the former employer.

But what of others who don’t know or have a right to access the information, and instead obtain it unlawfully? Can the company still protect that information as to them?

There is a significant divergence of opinions on where and how the lines are drawn, and the consequences of the particular categorizations. Indeed, there is not even consensus on the Venn diagram above, much less what happens at the intersections — or whether there should even be intersections.

I look forward to the discussion at the meeting and to the publication of the commentary that we are currently working on that will hopefully provide practical guidance for companies, courts, and individual employees.