How to use this checklist

Open a file for every hire from a competitor, even a junior one, and put the completed checklist in it. If a dispute comes two years later, this is the document that shows what the company did, when, and who did it. A court is less interested in your policy than in what happened to this person on these dates.

Work through the phases in order. Phases 1 through 5 run from first contact through day 90. Phase 6 applies the moment anyone suspects outside material has arrived. Phase 7 applies when a letter or lawsuit comes, and the two often overlap. Phase 8 is for a company on the other side of the table.

Owners are shown in brackets: [R] recruiter, [M] hiring manager, [HR], [IT], [L] in-house or outside counsel. Not every item applies to every hire, so note "N/A" and the reason for anything you skip. For a low-tier hire, Phase 1's tier decision may cut this down to a few items, but write the decision down.

For the law behind these tasks, read Hiring From a Competitor: Inevitable Disclosure, Employee Raiding, and the New Employer's Trade Secret Exposure. For the sequence with scripts and sample language, read Onboarding a Competitor's Employee Without Importing Its Secrets: A Practical Guide. Forms mentioned here are in Lateral Hire Toolkit: Candidate Certifications, Onboarding Instructions, and Cease-and-Desist Responses.

Phase 1: Before recruiting and before any offer

Set the ground rules

Identify restrictions and law

Tier the hire

  • [L and M] Score the hire: head-to-head competition; overlap of role; sensitivity of old access; timing relative to plans and launches; team moves; departure circumstances; former employer's enforcement habits. Note: These echo the factors in EarthWeb, Inc. v. Schlack, 71 F. Supp. 2d 299 (S.D.N.Y. 1999). The closer the role is to the old one, the stronger the former employer's story.
  • [L] Record the tier and the required steps. High tier gets the entire checklist.

Red flag: The candidate describes the move as bringing "the plan," "the book," or "the team." Stop and call counsel before any further contact. Facts like these drove Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024), where engineers were recruited in exchange for proprietary information, and the DTSA damages alone reached $407.4 million.

Red flag: A current employee of the competitor is assembling a group for you. That is the fact pattern in Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327 (1966) and Duane Jones Co. v. Burke, 306 N.Y. 172 (1954).

Phase 2: Interviews and candidate communications

  • [M] Brief every interviewer in writing: skills only; no customers, pricing, roadmaps, code, or who else may leave.
  • [M] Give interviewers the stop script, and tell them to report anything volunteered to counsel without writing down the substance. Note: In Language Line Services, Inc. v. Language Services Associates, Inc., 944 F. Supp. 2d 775 (N.D. Cal. 2013), an interview presentation listed competitor accounts and financial data, and another recruit sent a "60 Day Plan" before starting.
  • [M] Use neutral work samples. No code, decks, or models from the current job.
  • [R] Use personal contact details only. Do not communicate through the candidate's employer email or phone.
  • [M] Avoid notes or messages that describe the hire as a way to hurt or learn about the competitor.
  • [L] Check that finalists are not all drawn from one rival without a documented reason. Note: The district court in PepsiCo drew an inference from the fact that all three candidates came from PepsiCo. The Seventh Circuit noted an innocent explanation but deferred.
  • [HR] Discuss independent counsel with any candidate holding a covenant or sensitive access. Keep clear who represents whom. Authority: Upjohn Co. v. United States, 449 U.S. 383 (1981) on the corporate client; Waymo LLC v. Uber Technologies, Inc., 870 F.3d 1350 (Fed. Cir. 2017) on adverse interests and lost privilege.

Red flag: A file arrives unsolicited from a candidate. Do not open, forward, or delete it. Call counsel. Reading it adds to who knows and deleting it may create a preservation problem.

Phase 3: Offer and resignation

Offer

  • [L] Decide how to handle any enforceable covenant: restructure the role, delay the start or bench, candidate-requested waiver, proceed and defend, or declaratory action under 28 U.S.C. § 2201. Note: An unreasonable covenant may not support interference in some states, as in Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660 (Tex. 1990). Do not assume that outcome. New York courts may trim the covenant and enforce the rest.
  • [HR and L] Include representations: all restrictions disclosed; job can be performed without breach; no former employer material held; none will be brought or used.
  • [L] Decide on indemnification and put the limits in writing. Exclude intentional or dishonest conduct, and condition the promise on truthful certification and cooperation. Note: An indemnity can be evidence of knowing interference, so weigh it case by case.
  • [L] Write the role description with overlaps in mind. Authority: 18 U.S.C. § 1836(b)(3)(A)(i), under which any conditions must rest on evidence of threatened misappropriation, and a well-designed role gives little to enjoin.
  • [HR] Write the letter as if a judge will read it. Note: A signed form did not stop the injunction in Bimbo Bakeries, and its existence did not prevent liability questions in Language Line. It still helps. It is not the protocol.

Good leaver instructions

  • [HR] Deliver written leaving instructions: take nothing, including one's own work; no forwarding, downloading, or photographing; return everything.
  • [HR] Instruct: do not wipe, reformat, or delete to comply; speak to personal counsel first. Note: In WeRide Corp. v. Kun Huang, 379 F. Supp. 3d 834 (N.D. Cal. 2019), the court treated erasing a laptop, deleting files, and clearing browser history as evidence of misappropriation.
  • [HR] Instruct: recruit no colleagues and solicit no customers before the last day, and check any covenant afterward.
  • [HR] Instruct: give notice soon after accepting, and step back from sensitive meetings. Note: Bimbo Bakeries relied on the executive's staying in the room for nearly three months after accepting. Whyte and PepsiCo recount similar facts.
  • [HR] Instruct: no lying about the move. The candidate need not volunteer the destination unless required, but false statements hurt. Note: The "out and out lies" finding was central to the result in PepsiCo.
  • [HR] Include the statement that nothing limits lawful reports to government agencies or counsel, consistent with 18 U.S.C. § 1833(b).

Red flag: The candidate says, "I've been saving a few things to my personal Drive just in case." Do not advise deletion. Send the candidate to personal counsel at once, record that you did, and do not start the person until counsel has dealt with it.

Phase 4: Onboarding, day one through day 30

Machines and accounts

Instruction and role

  • [HR and M] Hold a live day-one meeting, read the instruction, and sign it together.
  • [HR] Obtain a signed certification that lists any material found and any restriction known.
  • [M] Teach the "I can't talk about how they did it" script to the hire and the immediate team.
  • [L and M] Write down the firewall: named accounts, products, or decisions the hire will stay out of, and the end date. Note: PepsiCo's injunction lasted about five months, and in Bimbo Bakeries the order ran until an early trial. Tie your period to how long the old information stays valuable.
  • [M] For sales hires, require that customer data come from your own CRM or public sources, and control imports. Authority: Ed Nowogroski Insurance, Inc. v. Rucker, 137 Wash. 2d 427 (1999) and Al Minor & Associates, Inc. v. Martin, 117 Ohio St. 3d 58 (2008), on memorized customer information.
  • [M] Assign replicating or head-to-head technical work to people who never worked at the competitor. Authority: 18 U.S.C. § 1839(6)(B) on independent derivation.

Red flag: The hire offers a "template," "starter kit," or "what we used to do." Stop, thank them, say no, and tell counsel the same day. Under Oakwood Laboratories LLC v. Thanoo, 999 F.3d 892 (3d Cir. 2021), use includes relying on a secret to assist or accelerate research or development.

Phase 5: Monitoring, day 30 through day 90 and beyond

  • [M and HR] Hold the 30, 60, and 90 day check-ins and record them. Ask: have you been asked for anything; have you found any old material; has anything made you uneasy?
  • [IT] Run keyword and metadata checks on company systems for the former employer's name, domain, known project names, and foreign copyright headers. Authority: written monitoring policy, and state notice statutes such as N.Y. Civ. Rights Law § 52-c, Conn. Gen. Stat. § 31-48d, and Del. Code tit. 19, § 705.
  • [M] Keep dated records of independent development: design documents, tests, commits, vendor quotes, and dead ends. Note: Speed draws attention. In WeRide the court cited "implausibly fast development," and Rohm & Haas Co. v. Adco Chemical Co., 689 F.2d 424 (3d Cir. 1982) charged a company with what it would have learned had it asked where a process came from.
  • [M] Explain sudden progress at the time it happens, in writing, if it follows soon after the hire.
  • [L] Do not access any personal account of the hire, even if credentials are stored on a company device. Authority: 18 U.S.C. § 2701.
  • [L] Reassess the firewall at its end date, and record the decision.
  • [HR] Close and keep the file, with retention at least through the likely limitation period. Authority: 18 U.S.C. § 1836(d) (three years from actual or constructive discovery).

Red flag: Colleagues say the new person always seems to know the answer "without testing it." That may be experience, or it may be negative know-how. Ask counsel to look before you ship.

Phase 6: When outside material surfaces

Immediately

First week

  • [L] Retain a forensic vendor through counsel, with a written scope. Authority: Fed. R. Civ. P. 26(b)(3) on work product. Note: A report may be discoverable. See Waymo. Limit distribution, and never give it to anyone whose interests may be adverse without advice.
  • [L] Interview the employee with an Upjohn warning and recommend separate counsel.
  • [L] Ask whether copies exist elsewhere, including personal accounts. Obtain the employee's consent, through counsel, before anyone looks.
  • [L and M] Remove the employee from the affected work while facts are gathered.
  • [L] Assess whether material was used, in what, and by whom.
  • [L] If used, plan remediation: isolate the source, wall off exposed people, rebuild from a functional specification with fresh staff. Authority: Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
  • [L] Decide about disclosure to the former employer, and record the reasoning.
  • [L] Arrange return or destruction only after imaging, and preferably by agreement, with certifications from those involved.
  • [HR and L] Decide about discipline after the facts are in.

Red flag: Someone proposes "just cleaning it up quietly." E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., 803 F. Supp. 2d 469 (E.D. Va. 2011) found bad faith spoliation after employees deleted thousands of files and emails following suit, and imposed fees and an adverse inference instruction.

Phase 7: When a letter or lawsuit arrives

On receipt

  • [Recipient] Send it to counsel with time and date of receipt.
  • [L] Classify it: reminder, accusation, or filed action. Note the specifics. Generic warnings may not establish knowledge under Bombardier. A letter naming files likely does.
  • [L] Issue or update the hold the same day.
  • [L] Tell the hire not to delete or return any device, and recommend personal counsel. Note: WeRide linked the return of a personal laptop to the manufacturer with the day a demand letter arrived.
  • [L] Calendar the deadline, and send a short holding note if needed. See Responding to a Cease and Desist Letter: A Practical Guide.

Investigating and replying

  • [L] Investigate before asserting anything. Do not say "we have confirmed" until you have.
  • [L] Match the author to the sender.
  • [L] Reply factually: no interest in their information; instructions given; what was checked and found; specific assurances; request for particulars and hash values; preservation confirmed.
  • [L] Avoid long arguments about enforceability, but cite the statute where a covenant is void. Authority: Cal. Bus. & Prof. Code § 16600.5.
  • [L] Consider a neutral forensic protocol and a hash exchange.

If an emergency motion is filed

Settling

Red flag: Executives want to move internal discussion of the dispute onto disappearing messages. Do not. WeRide described just that kind of shift among the facts supporting sanctions.

Phase 8: If you are the former employer

Red flag: The only evidence is that a good employee went to a competitor, and that the competitor is doing well. Courts have refused to infer use from success alone, as in CAE Integrated.

This checklist is general information and is not legal advice for a specific situation.

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