Trade Secrets & Employee Mobility: Mapping the Fractured Landscape of the Inevitable Disclosure Doctrine

Overview

I. Background

The inevitable disclosure doctrine permits a plaintiff in a trade secrets case to “prove a claim of trade secret misappropriation by demonstrating that defendant’s new employment will inevitably lead the defendant to rely on the plaintiff’s trade secrets,” as articulated in the seminal case PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1269 (7th Cir. 1995). The doctrine frequently arises in the context of temporary or preliminary injunctive relief and is controversial because it potentially “requires a court to recognize and enforce a de facto non-competition agreement to which the former employee is bound, even where no express agreement exists.”[1] Accordingly, states with strong public policies favoring employee mobility tend either to reject the inevitable disclosure doctrine outright[2] or to construe it narrowly.

The Defend Trade Secrets Act (DTSA), enacted in 2016, advanced a more uniform federal standard for trade secret protection and clarified key contours of the law. However, the DTSA did not expressly adopt the inevitable disclosure doctrine. Instead, the DTSA includes specific limitations on injunctive relief granted by federal courts to prevent “actual or threatened misappropriation” of trade secrets. DTSA prohibits injunctions that “prevent a person from entering into an employment relationship” and requires that conditions placed on employment be “based on evidence of threatened misappropriation and not merely on the information the person knows.”[3] The legislative history explains that this limitation was included because of the concern that the injunctive relief authorized under the DTSA could override state-law limitations that safeguard employee mobility and thus could be a substantial departure from existing law in those states.[4] Although the DTSA does not preempt state trade secret laws and is silent on whether it adopts the inevitable disclosure doctrine, federal courts have concluded that the DTSA forecloses federal courts from granting relief based solely on inevitable disclosure because such relief would restrain employment.[5]

In light of the DTSA’s emphasis on protecting employee mobility, states have started to reconsider the viability and practical implementation of the inevitable disclosure doctrine under their own trade secret laws, seeking to strike an appropriate balance between trade secret protection and employee mobility.

II. Summary of State Stances

In 2019, the United States District Court for the District of Oregon, in Phoseon Tech., Inc. v. Heathcote,[6] surveyed the status of the inevitable disclosure doctrine and found that seventeen states appeared to have adopted the doctrine in one form or another, while five states appeared to have rejected it. The remaining twenty‑eight states had not yet decided whether to follow the inevitable disclosure doctrine. Since then, additional decisions have clarified how courts view the doctrine, and most of those later decisions have declined to adopt it.[7]

As of 2025, thirteen states have adopted some version of the inevitable disclosure doctrine, those states being Arkansas, Connecticut, Delaware, Indiana, Illinois, Iowa, Minnesota, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Utah. Twelve states appear to have rejected the doctrine, those states being California, Colorado, Florida, Idaho, Louisiana, Massachusetts, Maryland, Michigan, Missouri, Oregon, Texas, and Virginia. The remaining twenty‑five states have not definitively resolved whether to follow the inevitable disclosure doctrine.

In addition to the increase in jurisdictions that have expressly declined to adopt the doctrine, those states that do recognize inevitable disclosure apply it in a markedly inconsistent manner. Courts in these jurisdictions generally emphasize that injunctive relief premised on inevitable disclosure requires intensive, fact‑specific analysis, reflecting continuing concern about employee mobility and de facto restraints on competition. Taken together, the authorities indicate that most adopting states pair recognition of the doctrine with significant limitations on its use. These jurisdictions may be grouped into three general categories, based on how clearly they recognize the doctrine, how frequently they apply it, and how narrowly they cabin its scope.

(A)            Category 1 - Consistent and Structured Implementation

Courts in Arkansas, Illinois, Pennsylvania, New Jersey, and Ohio expressly recognize inevitable disclosure as a valid theory of “threatened misappropriation” in circumstances where actual misappropriation cannot be established. These courts generally follow, expressly or implicitly, the framework articulated in PepsiCo, Inc. v. Redmond, considering, among other factors, the degree of competition between the former and new employers, the similarity between the employee’s prior and new roles, and the measures undertaken by the new employer to prevent use or disclosure of the former employer’s trade secrets.[8] To address the concerns surrounding restrictions on employee mobility, courts in these states repeatedly emphasize that they will not assume inevitability and require the plaintiff to show an intent or a high probably that the employee will use trade secrets,[9] the sensitivity and commercial value of the information at issue,[10] and the employee’s lack of independent experience sufficient to perform the new position without resort to the former employer’s trade secrets.[11]

(B)            Category 2 - Narrow and Cautious Implementation

Courts in Connecticut, New York, North Carolina, and Indiana recognize inevitable disclosure doctrine as a viable theory but repeatedly stress that the doctrine is disfavored and requires a substantial factual showing to support relief.

Connecticut courts characterize the doctrine as narrow and seldom applied,[12] often requiring the presence of a non-competition agreement or a very high degree of competitive overlap.[13] Indiana courts have stated that the doctrine will be invoked only in “rare and narrow” circumstances, typically where there is evidence of bad faith in the taking or threatened taking of confidential information.[14] New York courts apply a multifactor analysis that considers, among other things, the nature of the competition, the similarity of the positions, the value and sensitivity of the information, and the industry context, while repeatedly labeling the doctrine “judicially disfavored” and reserving its use for situations presenting a particularly acute risk of misuse.[15] North Carolina courts have indicated that, although the doctrine may be applied in some circumstances, it is not clearly defined under state law and should be employed only to tailor the scope of an employee’s new responsibilities, not to bar employment with a competitor entirely.[16]

(C)            Category 3 - Theoretical Adoption with Limited Implementation

Courts in Iowa, Minnesota, Delaware, and Utah have acknowledged the inevitable disclosure doctrine in principle, but there is relatively little authority applying it, and the contours of the doctrine remain indistinct. In some instances, state and federal courts within the same jurisdiction have taken divergent approaches.

The Southern District of Iowa, for example, has described inevitable disclosure as “one way of showing a threatened disclosure in cases where additional evidence showing the existence of a substantial threat of impending injury is unavailable to the movant.”[17] However, the Court also noted that the Iowa Supreme Court has not adopted the inevitable disclosure doctrine.[18] Minnesota courts have stated that they have not taken a position on whether to adopt inevitable disclosure but have find “the rationale helpful when evaluating likelihood of misuse.”[19] Delaware and Utah likewise lack detailed decisions explaining when inevitable disclosure will support injunctive relief and what evidentiary showing is required, leaving the practical scope of the doctrine in those jurisdictions uncertain.

III. Conclusion

In summary, the current landscape reflects that adoption of the inevitable disclosure doctrine remains both inconsistent and constrained, and the number of states willing to adopt it has continued to shrink. Only five states have adopted structured approaches to implementing the doctrine, but even in these jurisdictions, courts impose rigorous, fact‑intensive requirements and emphasize narrowly tailored injunctive relief. Several other states recognize the doctrine only grudgingly, characterize it as disfavored, and confine its use to exceptional circumstances. A growing number of jurisdictions have either rejected inevitable disclosure or have refrained from adopting the doctrine in any meaningful way.

In light of this uneven landscape, employers should avoid relying on the doctrine of inevitable disclosure to protect their trade secrets. More effective protection lies in a systematic trade secret protection strategy: well-drafted confidentiality agreements and enforceable restrictive covenants, together with robust access controls, thorough exit interviews, and prompt enforcement when actual misappropriation is identified.

Professionals

Robert Isackson

Partner

Yilan Wang

Associate