Move on the evidence first, and do not assume the non-compete is your best claim — in the District it usually is not. D.C. banned non-competes for covered employees, but expressly left restrictions on confidential and proprietary information outside the ban, and defines proprietary employer information to include customer and client lists. The D.C. Uniform Trade Secrets Act then supplies the remedies that actually matter, including an injunction against threatened misappropriation.
The first 48 hours
Preserve before you investigate: device images, access and download logs, email, and the departure paperwork. Logs are frequently overwritten on a rolling basis, and the window closes on its own. Then establish what was actually taken, and whether it meets the statutory test.
Does the information qualify?
(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives actual or potential independent economic value, from not being generally known to, and not being readily ascertainable by, proper means by another who can obtain economic value from its disclosure or use; and (B) Is the subject of reasonable efforts to maintain its secrecy.
D.C. Code § 36–401(4)
⭐ The second element is where claims fail — reasonable efforts to maintain secrecy. What the company actually did to restrict the information matters more than how valuable it was.
Which claim is strongest?
| Route | Availability | Where it sits |
|---|---|---|
| Trade secret misappropriation | Full statutory remedies, including injunction and exemplary damages | §§ 36–401 to 36–406 |
| Confidentiality / NDA | Excluded from the non-compete ban | § 32–581.01(15)(B)(i) |
| Non-solicitation | Depends how it is drawn | § 32–581.01(15) |
| Non-compete | Only for highly compensated employees meeting § 32–581.03 | §§ 32–581.02, 32–581.03 |
| Computer access | Where credentials or systems were misused | 18 U.S.C. § 1030 |
| Claim against the new employer | A separate cause of action | Tortious interference |
Can it be stopped before the information is used?
(a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for a reasonable period of time to eliminate commercial advantage that otherwise would be derived from the misappropriation. (b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of a misappropriation that renders a prohibitive injunction inequitable. (c) In appropriate circumstances, an affirmative act to protect a trade secret may be compelled by court order.
D.C. Code § 36–402 — Injunctive relief
Yes — threatened misappropriation may be enjoined. See emergency injunctions and TROs.
Will suing expose the secret?
In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, or sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
D.C. Code § 36–405 — Preservation of secrecy
The court shall preserve secrecy by reasonable means. That is mandatory, not discretionary — and it is the answer to the question that most often stops companies acting.
How long is there?
Three years from discovery under § 36–406, and a continuing misappropriation counts as a single claim, so delay does not reset the clock. Do not calculate your own deadline from this page.
Frequently asked questions
Our non-compete is probably void. Do we have anything?
Very likely yes. Confidentiality and proprietary-information restrictions are excluded from the ban, and the Trade Secrets Act provides the stronger remedies.
What should we preserve?
Device images, access and download logs, email and departure paperwork — before rolling deletion overwrites them.
Can we act before they use the information?
§ 36–402(a) allows threatened misappropriation to be enjoined.
Can we sue the new employer?
That is a separate claim against a separate party with its own elements.
Will litigation make the information public?
§ 36–405 requires the court to preserve secrecy, including by protective order, in-camera hearing or sealing.
Who can be sued when an employee takes information to a competitor?
Both the employee and, on the right facts, the new employer. D.C. Code § 36–401(2) reaches disclosure or use by a person who knew or had reason to know the secret was derived from someone who used improper means or owed a duty to maintain secrecy.
Why is the trade secret claim usually stronger than the restrictive covenant?
Because it does not depend on an agreement that may be void. Since October 1, 2022, D.C. Code § 32–581.02(a) bars non-compete provisions for covered employees and makes them unenforceable, whereas the trade secret claim arises from the conduct itself.
Where are these claims brought?
In the Superior Court of the District of Columbia under D.C. Code § 11–921, which also hears the application for an injunction under § 36–402 restraining actual or threatened misappropriation.
How quickly does the company need to move?
Before the information is used, if possible. Section 36–402(a) allows threatened as well as actual misappropriation to be enjoined, and an injunction terminates once the trade secret has ceased to exist — so delay can extinguish the very remedy being sought.
What does it cost to enforce a non-compete that turns out to be void?
Under D.C. Code § 32–581.04 an employer that attempts to enforce an invalid non-compete is liable to each affected employee for not less than $1,500, and not less than $3,000 for a subsequent violation, in addition to an administrative penalty of not less than $350.
How does a company show the information was a trade secret at all?
By evidencing both halves of D.C. Code § 36–401(4): that the information derived independent economic value from not being generally known or readily ascertainable by proper means, and that it was the subject of efforts reasonable under the circumstances to keep it secret. The second half is usually where cases are won or lost.
Sources and legal authorities
- D.C. Code § 36–401 — Definitions
- D.C. Code § 36–402 — Injunctive relief
- D.C. Code § 36–403 — Damages
- D.C. Code § 36–405 — Preservation of secrecy
- D.C. Code § 36–406 — Statute of limitations
- D.C. Code § 32–581.01 — Definitions
General information about D.C. law, not legal advice. Which rule applies depends on the entity, the agreement and the facts.
Related: Trade Secret Misappropriation · Unfair Competition · NDA / Confidentiality Disputes · Emergency Injunctions · Non-Compete Disputes · Business Litigation. Call (301) 901-3109 or use the contact page.