When Trade Secrets Become Shackles: Fairness and The Inevitable Disclosure Doctrine

Elizabeth A. Rowe
Tulane Journal of Technology & Intellectual Property, Vol. 7, 2005

Should an employer be able to enjoin an employee from working for a competitor when the employee did not sign a non-competition agreement? Under the inevitable disclosure doctrine, an employer may obtain such an injunction on the theory that the employee knows so much of the employer's trade secrets, that it is inevitable she will disclose these secrets to the competitor.

The doctrine has faced enormous criticism by virtually all of the legal scholars who have addressed it to date. They question its utility and fear its dangers. The crux of the opposition appears to be that (i) it is not fair to enjoin an individual from earning a living, especially without a non-competition agreement, and (ii) courts are too unpredictable and inconsistent in ruling on these cases.

In this article the author takes a different view of the doctrine recognize its usefulness and its powerful reach, in that it touches on the intersection of employment law, intellectual property trade secret law, and the law of unfair competition. After careful review the author suggests that it is the application of the doctrine rather than the doctrine itself that seems to be in disfavor. Like many other types of cases that are fact intensive and decided on a case by case basis, the challenge is to make application of the doctrine more consistent, more predictable, and ultimately more fair.

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