Hello, I'm here today with author and attorney Mark Halligan from Fisher Broyles
and he's going to talk a little bit about his books today mark. How are you doing very good?
Thanks for being on the show. Thank you
Thanks to fighting me so uh you were approached about
Writing a book a while back on the defend trade secrets act can you tell everyone a little bit about?
What your book covers and why it's relevant?
well the defend trade secrets Act of
2016 is a watershed event in intellectual property law and it's the culmination of
You know years of work on my part to?
Emphasize the need for a federal civil cause of action in most cases the victims are corporations
And they should have access to the federal courts
In what cases would the defense trade secret Act apply?
Well in any case involving
the
Alleged misappropriation are the actual misappropriation or threatened misappropriation of trade secrets
You now have access to bring a private civil cause of action that is subject matter jurisdiction in the federal courts
nationwide
So now you've you've written a second book more recently the trade secret asset management
2018 book can you tell people a little bit about what that's about
well that that's the that's the next phase in in trade secrets law that is the
internal act of management by companies of their trade secret assets which involves identification
classification protection and valuation and
in order to
Be able to use the defend trade secrets Act and be able to allow
This intellectual property right to thrive and grow now with federal protection in the courts you have to have internal systems in place for
These trade secret ounces
So do clients sometimes contact you
Before employees leave and take things to proactively try to make sure their their stuffs in order well
Unfortunately companies wait until the horses out of the barn, and then they scramble to retain outside counsel
And then I scramble around to determine what the trade secrets are and what the evidence of misappropriation is and we've seen this play out
In major cases now
most recently the the way mol case out in California where
You're where everybody is running around trying to determine. What's that issue in the case?
So it's better to do that ahead of time with internal management said
Clients that are proactive and they get an assessment of what their assets are beforehand
Do they tend to spend less money when they become embroiled with litigation to figure on that yes?
Yes, absolutely if you have internal active trade secret management
You are able to identify within a matter of seconds literally
The trade secrets that are at issue and the evidence that the employee had access to those trade secrets or the former employee now you
Have some proprietary program. You develop the deals with that correct
I do uh the name of the program is the trade secret examiner?
And it was introduced commercially deployed
version I believe version four or version five last August and
Malucia nary new platform to assist companies in the identification
classification protection evaluation of trade secret assets
So if someone is watching this video
At night and their executive of a company, and they just lost their head of sales of marketing
What steps should they take immediately?
To help protect their company and their client base
Well if they have if they have been engaged in internal trade secret asset management
Then I would expect they have a trade secret incident response plan that could be activated immediately and a SWAT team
Which is essentially outside Council ready to go to the courthouse?
you know
And if they do not have those
procedures and mechanisms in place then they call me and I head out to the company with a yellow pad and a pen and
Start to interview witnesses to see if I can determine what the trade secrets are and what the oven and submissive
Corporation is so once you have reason to believe that some of your clients data. Was you know propria taken and misappropriated
What what do you do?
First to get ready for Court after after you've taken those notes. What do you prepare have to do to prepare for your TR?
Oh well again from a forensic standpoint
The first thing you need to do is cordon off the area where the defendant worked or had computers
And you get encase images of of the computer to preserve the evidence
you certainly don't want to have the IT department flailing around inside the computer because
You know that that will change the the the evidence
You know it was an interesting market of one of my colleagues alex Gessen had done some research and what he realized is that?
Companies that use tools such as ftk imager when you capture the forensic image of a harddrive device
It records a serial number for that device that is not
Detected when you do forensic analysis to see if devices were plugged in in actuality
There's two serial numbers on the harddrive and only one of the two serial numbers is the one reported and they're not always consistently
Detected so we we agree with you on that using n case to make the forensic image and case actually
At the time of imaging n case will capture the serial number that can be detected in the registry
So what we've discovered is that people who haven't used any case they later on do this analysis to see
Was the thumb drive plugged into the other computer, and they could actually have a false negative because they didn't
Appropriately image the media issue well
That's fascinating and that shows you how critical it is to do the forensics correctly at the very beginning of the case?
Could be case determinative so you've done the forensics in your going into court
What are you hoping to prove when you've done computer forensics? What are?
What type of things are you hoping to be able to express in the form of an affidavit or support for your motion?
well a trade secret misappropriation case involves the
Actual or threatened misappropriation of trade secrets so your what you're trying to do is protect these fragile assets
I mean a trade secret once lost is lost forever
So you are attempting to stop the bleeding plug the dike get an order that there is to be a preservation of evidence?
Also stop the continuing misappropriation activity or if it has not occurred yet through injunctive relief
set up son a wall can prevent the misappropriation of trade secrets and
To the extent possible prevent its dissemination other computers in the United States or to other parts of the world
Mark can you tell me any war stories about your use of computer forensics and what happened went into court well, I think
What I have seen in several occasions
And I represented a major company and in a case involving very serious acts of trade secret misappropriation
and alleged foreign economic
espionage
You know the federal courts want to protect the privacy rights of individuals
With like chronically stored information, so there's always this tension between
you know the plaintiff seeking to prove up its trade secret case or a
misappropriation of trade secrets with the defendants interest in protecting the privacy of
Files and things that are on the computer
So oftentimes the court requires search terms and you start off the case by looking
At whether or not these search terms pop up on the computers
and
In in a case when I was involved with when those search terms were plugged in we found
That a file destruction software program had been run oh there and and that the clock said and that the clock had been
Changed and with that kind of evidence before the judge we were then given access to the entire commuter no computer no more
Search terms and when we got access to the entire
Computer we found out other third parties that were involved and of course the case
expanded to a involve other defendants other
entities but it all happened with the finding on the initial search terms of indicia of a
Destructured software doing what well thanks a lot for being on the show today mark this was great stuff
And thank you people need to reach you that they can see the link to your website. Thank you much
Thank you very much. Take care
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