The answer will depend on the facts and circumstances, but filing a trade secret misappropriation claim is a possible method by which your business could recover a laptop taken by an employee who quit. As an aside, if the laptop is company property, then it might be considered stolen property. Under those circumstances, a call to law enforcement may be the solution.
But, for our discussion, let’s assume the laptop is owned by the employee — maybe a bring-your-own-device. Even if the laptop is the property of the employee, a trade secret misappropriation case might still allow the company to obtain physical possession of the laptop (at least temporarily). For a trade secret misappropriation claim to be filed, it must be shown that the laptop computer contains company information that is a trade secret. If successful, under the federal trade secrets statute, among other remedies, your company can ask the judge to order a civil seizure of the laptop. The purpose of such a seizure would be to remove any trade secrets or other confidential information from the computer.
Making a case for trade secret misappropriation may not be as difficult as it sounds since trade secrets are defined as any type of information that
- Has been the subject of reasonable measures by the owner to keep the information secret and
- That derives independent economic or commercial value from the fact that the information is secret
By this definition, the laptop might contain any number of trade secrets such as customer lists, financial documents/information, scientific data, engineering plans, designs, programs, formulas, information about business plans and methods, etc.
The second legal element that must be proven is misappropriation. Generally, “misappropriation” is defined as acquisition of trade secrets through some use of “improper means” or disclosure or use of a trade secret without consent from the owner of the trade secret. This element might be a bit more difficult to establish legally. Much will depend on what company policies and procedures are in place with respect to confidentiality, non-disclosure and return of information upon separation from employment. If an employee is barred from taking confidential trade secret information with him or her after separation, then the misappropriation claim is stronger. Likewise, misappropriation can be shown if there is any factual indication that the trade secrets are being used or disclosed.
As noted above, if misappropriation can be shown, it might be possible to get a quick order from the court requiring civil turnover of the laptop. In addition to injunctive relief, money damages can also be sought in the form of actual provable damages, disgorgement of profits or other monies obtained by the person misappropriating the trade secrets and more. Under some circumstances, the owner of a trade secret can be awarded exemplary damages and reasonable attorneys’ fees. If you have questions about protecting your trade secrets or litigating a trade secret dispute, contact the trade secret lawyers at Revision Legal at 231-714-0100.
The Defend Trade Secrets Act: Federal Relief for Laptop Seizure
While state trade secret laws provide important protections, the Defend Trade Secrets Act of 2016 (DTSA), 18 U.S.C. §§ 1836-1839, creates a federal private right of action for trade secret misappropriation that gives employers powerful tools to recover company information from departing employees—including through an ex parte seizure order. Under 18 U.S.C. § 1836(b)(2), a court may, on an ex parte basis (without advance notice to the opposing party), order the seizure of property ‘necessary to prevent the propagation or dissemination of the trade secret.’
The ex parte seizure provision is exceptional in civil litigation—most injunctive relief requires advance notice to the opposing party. Congress included it in the DTSA specifically to address situations like laptop misappropriation, where a departing employee might destroy or transfer trade secret information if given advance notice of a seizure order. To obtain an ex parte seizure order, the employer must demonstrate: a clear showing that the departing employee is in possession of a misappropriated trade secret; that immediate and irreparable harm will result if advance notice is given; and that the harm from refusing the order outweighs the harm to the employee.
Criminal Exposure for Employees Who Take Company Information
In addition to civil liability, employees who take company information when they quit may face criminal prosecution. The Economic Espionage Act (EEA), 18 U.S.C. §§ 1831-1839, makes it a federal crime to steal, copy, or receive trade secrets knowing that the conduct would benefit a foreign government, instrumentality, or agent (economic espionage, § 1831) or to steal trade secrets for economic benefit of anyone other than the owner (trade secret theft, § 1832). Conviction under § 1832 carries imprisonment of up to 10 years and fines.
State criminal theft statutes may also apply. If the laptop itself is company property, the employee’s failure to return it may constitute criminal theft under state law, independent of any trade secret claim. Many states have specific statutes addressing computer fraud and unauthorized access to computer systems, which may be triggered if the employee accesses company data on the laptop after the employment relationship ends.
Non-Compete, Non-Solicitation, and Confidentiality Agreements
The strength of a company’s legal position in a laptop misappropriation case is substantially affected by the agreements the departing employee signed. A robust set of employment agreements should include:
- Confidentiality and non-disclosure agreement (NDA) — Explicitly identifies categories of information that constitute trade secrets and confidential business information; establishes the employee’s obligation to return all company property upon separation
- Non-solicitation agreement — Prohibits solicitation of customers and other employees for a specified period after departure; particularly valuable if the laptop contains customer lists or sales pipeline data
- Non-compete agreement — Restricts the employee from working for competitors for a specified period and in a specified geography; enforceability varies significantly by state (notably unenforceable in California, limited enforceability in many others)
- Computer and acceptable use policy — Establishes clear rules for use of company and personal devices for company business, including retention and return obligations
Digital Forensics and Evidence Preservation
A laptop misappropriation case typically requires digital forensics to establish what company information was on the laptop, what the employee did with it, and whether it has been copied, transmitted, or accessed by third parties. Forensic analysis can reveal deleted files, cloud upload activity, USB connection logs, email attachments, and access patterns that establish both the existence of trade secrets on the device and evidence of misappropriation.
Evidence preservation is critical from the outset. The employer should issue a litigation hold immediately upon learning of the potential misappropriation, directed to all personnel with relevant information and to all cloud and email systems the employee accessed. Failure to implement a litigation hold can result in spoliation sanctions if evidence is later found to have been lost or destroyed. An attorney experienced in trade secret litigation can help implement an effective litigation hold and coordinate the forensic investigation.
Negotiated Resolution vs. Litigation
Many laptop misappropriation disputes are resolved through negotiated agreements rather than litigation. A well-crafted demand letter from experienced trade secret counsel—asserting specific legal claims under the DTSA and state law, demanding return or forensic verification of the laptop, and identifying specific categories of trade secrets at issue—often prompts quick compliance without the need for court intervention. However, if the employee refuses to cooperate or if there is evidence that trade secrets have already been shared with a competitor, prompt litigation and application for emergency injunctive relief may be necessary.
The trade secret attorneys at Revision Legal have experience handling laptop misappropriation matters, from demand letters through ex parte seizure applications and full trade secret litigation. Contact us today if a former employee has taken company information or refused to return company property.
