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How to Use an Exit Interview to Protect Your Company's Proprietary Information

Posted by attorney Justin Lowenthal

In order to be entitled to protection of your company's trade secrets and confidential proprietary information, your company must be able to demonstrate that it took reasonable measures to ensure the secrecy of the information that the company seeks to protect.

Using a confidentiality or nondisclosure agreement to help ensure secrecy during and after an employee's term of employment is highly advisable. However, alone it is simply insufficient. Your company must actively take reasonable steps to secure its confidential and trade secret information against loss, disclosure, and publication. When an employee is terminated, it is important that an exit interview be conducted to ensure that your company is continuing to take reasonable steps. The importance of doing so cannot be overstated.

Upon departure, your company's goals are to prevent the employee from taking proprietary information to a competitor and recover the information from the departing employee, regardless of whether the information might be in paper or electronic form. To be afforded legal protection, the company should be able to demonstrate that it exercised reasonable measures to acheive those goals.

While a carefully crafted contract executed during the employee's term of employment helps ensure the employee's cooperation with your company's inspection and retrieval of sensitive information in the employee's possession, custody, or control, the exit interview is necessary to demonstrate that your company follows a pattern and practice to discover and secure that information. This creates positive evidence of the required reasonable measures.

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