As in-house counsel or outside corporate counsel, how would you handle this situation? Two employees download your corporate client’s proprietary information about Product X, join a competitor, and—surprise—a similar Product X from the competitor hits the market just a few months later.
Your client conducts a forensic investigation and discovers irrefutable evidence of the employees’ theft. Sure, you may file a civil action for trade-secrets misappropriation, but your client wants the employees criminally prosecuted.
Should you disclose the investigator’s report to the U.S. Attorney’s Office to aid the prosecution? Would that limited disclosure result in privilege waiver in the parallel civil case? Isn’t there some type of privilege-sharing doctrine, such as a so-called joint–prosecution privilege, or even the common–interest doctrine that would prevent privilege waiver?