The "Access and Opportunity" Argument and Evidentiary Burdens

In my last post, I discussed another bad-faith ruling in the context of misguided, opportunistic trade-secrets litigation.

When discussing that particular case, I raised the prevalence of the "access and opportunity" theory and how the use of that particular theory (and the simplistic building blocks upon which it's based) can walk a plaintiff right into a bad-faith fee claim.

This post, somewhat of a follow-up to my prior one, discusses a recent Fourth Circuit decision called RLM Communications, Inc. v. Tuschen, in which the court (applying North Carolina law) discussed the burdens of proof associated with an access-and-opportunity claim. To remind readers, an access-and-opportunity claim is one where the plaintiff's reasoning is based entirely on circumstantial evidence that pieces two innocuous facts together to lead to a conclusion. That is, the employee had access to certain trade secrets and s/he now works at a company where she would have the opportunity to benefit from using those secrets; therefore, s/he has misappropriated them.

For starters, "access and opportunity" might be called "inevitable disclosure" without the help of steroids. Typically, an inevitable disclosure claim rests on a trigger fact - that is, some suspicious fact that creates a needed evidentiary link to bolster an access-and-opportunity claim. One example might be suspicious work activity in the day or two leading to a resignation.

The Tuschen court addressed a North Carolina statute that allows an employer to establish a prima facie case of trade secret misappropriation by showing knowledge of the secret and an opportunity to disclose it. According to the court, proving these facts alone did not enable the employer to survive summary judgment. In the critical passage, the court notes:

"In the employment context, if knowledge and opportunity suffice for a prima facie case of misappropriation, then an employer can state a prima facie case against its employee merely by showing that it gave the employee access to its trade secrets. The employer therefore can force such an employee to go to trial on a misappropriation claim - unless the employee can rebut the prima facie case."

The court dealt with the burden-shifting question by finding that North Carolina courts would require employers to do more. Either the acquisition of the trade secret was through an abuse of access (which would seem to fit within the plus-factor, inevitable-disclosure analysis I describe briefly above), or the employer must come forward and rebut an employee's showing that the acquisition of the trade secret was gained through the consent of the employer. This, too, would require some form of abuse or misuse of company access to take proprietary information.

An alternative way of saying this is that, for summary judgment purposes, knowledge and opportunity is not enough. An employer must present evidence beyond this to raise an inference of misappropriation.

The decision is a fairly interesting read in that it discusses burden-shifting much like courts assess claims of employment discrimination. The larger question the court addresses, though, is that weak trade secrets claims are perfectly suited for summary determination short of trial. Clearly the court was concerned about simplistic reasoning and the piling of unreasonable inferences - when the price for that stretched logic is forcing an employee to go through the pains of an arduous trial.