To Catch a Trade Secret Thief With Forensic Neutrals

November 2, 2022

By Daniel B. Garrie

Remediating the theft of a trade secret can be likened to a dried red wine stain on your favorite white shirt. While the stain is readily visible, removing the stain and restoring the shirt to its original condition is difficult, and sometimes impossible. Similarly, discovering the theft of a trade secret does not solve the underlying business issues created by the theft. Those business issues require the organization to identify the bad actor who stole its trade secret and then ensure all evidence of the trade secret is removed from the thief’s possession. Erasing this information from an individual’s or a company’s system, however, is more complicated, and certainly more important, than removing that wine stain from your shirt. The answer is to retain a qualified forensic neutral as the expert stain remover.

A forensic neutral, or neutral forensic inspector, is retained by mutual agreement between the parties or appointed by a court, arbitrator or other decision-making body and mandated to carry out some action on the body’s behalf. A forensic neutral is uniquely qualified by knowledge and experience to address the legal and technical issues that arise in a trade secret dispute, including determining how to best remedy the theft of the trade secret. As an attorney, a forensic neutral can help parties understand the technical requirements set forth by a protective order, draft necessary protocols and monitor compliance with a court order. As a technologist, a forensic neutral can also perform technical work.

When each party hires competing forensic experts, the processes are unnecessarily complicated, and there is a risk that these experts will act in a confrontational and biased manner, becoming little more than another attorney or advocate for one side of the dispute. In comparison, forensic neutrals are neutral; they act in the interest of both parties through the entire scope of their services. Hence, enlisting a forensic neutral removes the need to retain technical and legal experts, avoids a “battle of the experts” and shortens or eliminates the long briefing and waiting period required when bringing technical issues before the court.

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