“What if the secrets are all in my head?”
Very often, a departing employee won’t take customer lists or other confidential documents with him, but a lot of the information he has memorized will be considered by his former employer to be confidential. Customer names and contact information, for example, are routinely memorized by sales representatives. Nevertheless, the sales representative’s employer typically contends that such information is confidential.
Some states have adopted the so-called “memory rule,” according to which the departing employee may use anything that’s in his head to memory. Thus, as long as the employee didn’t take the customer list with him, he may use the information from that list that he has committed to memory.
In Texas, though, authority exists for the proposition that whether the information is contained on a document the employee has taken or in the employee’s head, trade secret protection may attach to the information. The key inquiries are: (a) whether the information is really secret (e.g., whether it is widely known in the industry); and (b) what steps did the employer take to keep the information secret?