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How does the expense of an attorney impact what is reasonable under the circumstances?
The cost and benefit of using counsel determines what is reasonable. Reasonableness may be judged in view of following the most cost effective alternative.
A company using the information on this web page can greatly minimize the amount of involvement of counsel in arranging the procedures. A well-written explanation of the protection program further minimizes the involvement of counsel. A trade secret holder can be quite organized and minimize the cost of counsel, making the cost quite small.
The benefit lies principally in three areas. First, audits help by preventing problems before they occur, since well protected information is less likely to be misappropriated. Second, audits help minimize litigation when problems arise, since well protected information is less likely to be challenged in court as to whether it is adequately protected. Third, audits ease an attorney's effort needed to prove one's case, since the information used for the audit and resulting opinion is virtually all the evidence that needs to be submitted on perhaps the most costly-to-prove element of a trade secret lawsuit. The cost savings to the trade secret holder alone in one incident will warrant the cost of a hundred or more trade secret audits. Is it reasonable under the circumstances to not have an audit performed, when the costs associated with the decision greatly exceed the cost of having the audit performed?
Updated: 11/12/99
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