You would think that evidence of the improper downloading of 5,000 files by a former employee who then invokes his Fifth Amendment privilege against self-incrimination, coupled with the remarkable similarity between inventions (see the picture alongside) would be enough to demonstrate circumstantial evidence of the misappropriation of trade secrets. If you thought so, you would be wrong. In one of the highest profile trade secret case since Waymo v. Uber, the plaintiff Wisk Aero thought it had its competitor dead to rights after expedited discovery revealed these and other facts. However, U.S. District Court for the Northern District of California Judge William H. Orrick disagreed, rejecting the circumstantial evidence presented by Wisk Aero because it did not tie the alleged trade secrets with the circumstantial evidence of misappropriation. As explained below, this case is the latest in a line of decisions declining to find that evidence of improperly downloaded information may not be sufficiently compelling circumstantial evidence of misappropriation. (A copy of the opinion can be found here). Continue Reading Wisk Aero LLC v. Archer Aviation Inc.: A High Profile Trade Secrets Case Shows the Limits of Circumstantial Evidence
In this episode, Ben Fink, Russell Beck, and I discuss two hot topics in trade secret and noncompete law, particularly during COVID-19: employee surveillance and protecting legitimate business interests when an employee’s employment is terminated without cause.
And, as always, please don’t hesitate to email Ben, Russell or me with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we can certainly discuss any issues you interested in.