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Inevitable Disclosure Need Not Be Inevitable

By Michael Starr

There is something in the doctrine of inevitable disclosure that sets the heart to fluttering and the blood to boil. The former for those suing disreputable employees who want to advance themselves by peddling to their new boss their former boss's trade secrets. The latter for those representing honest employees who believe they ought to be able to change jobs without checking their years of accumulated know-how at the door on their way out. Both have legitimate concerns.

The doctrine of inevitable disclosure is a crucial tool to protect companies from perfidious former employees and is no threat to the honest ones ' if properly applied. The Third Circuit's recent decision in Bimbo Bakeries USA, Inc. v. Botticella, 2010 WL 2902729 (July 27, 2010), is a good illustration of this. But by studiously avoiding the word “inevitable” in its formulation of the basic legal principles, and stating that only “substantial likelihood” is required for the former employer to prevail, it muddied the analysis. What really matters in such cases is not the degree of probability, but rather the predictability of unauthorized use of trade secrets based on the pre-termination conduct of the departing employee.

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