Fixing non-disclsoure agreements to protect your trade secrets

If your NDA allows people to use information retained in their memories for any purpose, you’re going to have a hard time protecting your trade secrets. Which is why a court previously granted Google's motion to dismiss Space Data’s trade secret claim.

But Space Data shot back with a new theory.

This one’s a winner. The new complaint alleges that Google didn’t just rely on what was in its employees’ memory. Google also took photographs. And Space Data told Google those photos should be treated as confidential under the NDA. 

Which means Google can’t use those photographs. But they may have anyways.

The court recognized this and allowed the suit to proceed. But it's gonna hinge on whether Google actually used those photos or not.

The court also recognized that pleading use of a trade secret is not a high bar. Space Data alleged that Google's product was “strikingly similar” to Space Data’s, and that was enough.

One more thing. With claims under the Defend Trade Secrets Act, the court recognized that you can bring use-based claims (not just acquisition or disclosure-based ones). And that continuous use after the DTSA’s enactment date is enough to bring a claim.