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What are the three main pillars and why most of them are prepared long before a case

The problem usually comes in the same way. A key employee left a month ago, is now working for a competitor, and your clients have started receiving offers that sound suspiciously familiar. You are calm - you have a confidentiality agreement. But can you defend yourself?

What is our thesis

A trade secret case is not a dispute about facts, but a dispute about access to facts. Contrary to the popular belief that a confidentiality agreement is protection, we will show that it is only one of three conditions — and the most often unproven one.

In the following lines, we will expand on the issue of measures to protect confidential information, how they are built in practice, and how to prove your claims in court.

The confidentiality clause is not a measure of protection

For information to be recognized as a trade secret, it is not enough for it to be objectively valuable and non-public. The law also requires a third condition, which exists only if you have done something active: that the owner has taken reasonable measures to keep it secret.

Here is the most common mistake. It relies solely on a blanket clause — in the employment contract or in the internal labor regulations — which declares everything that has become known to the employee in connection with the work to be secret.

In their practice, both the court and the Commission for the Protection of Competition accept that such a general determination is not a measure of protection if the information is not specifically and exhaustively defined in content and scope. The governing bodies must specify in advance, by a specific act, which facts, documents and databases are trade secrets, separating them from the rest of the company information.

The lack of such individualization excludes the possibility of establishing a violation at all. The claim is not lost on the merits - it simply does not reach the merits.

What measures for protecting a trade secret do the courts recognize?

In short: a combination of organizational, technical and legal measures, each of which can be proven with a document or a record.

1. A specific act of the governing body that specifically lists what is a secret - by type of documents, databases and processes. Not "the entire company's activities".
2. Limited access on a "need-to-know" basis — that is, only employees who actually need it for their work have access to sensitive information, not everyone.
3. Technical measures. Individual passwords instead of shared accounts, two-factor authentication (login with a password plus a code from the phone), limited rights to copy and download.
4. Audit logs. The audit log is the automatic record that your system keeps of which employee opened or downloaded which file, when, and how long ago. If you work in Google Workspace or Microsoft 365, it almost certainly already exists — the question is whether someone keeps it and for how long.
5. Marking. Marking "Confidential" on specific documents and files is a simple and easily provable measure.
6. Training with a protocol and the employee's signature that he is familiar with the act. That way, there is no dispute later about what he knew.

The conclusion about the practice is straightforward. In the claim, do not refer to the employment contract, but prove what exactly was designated as secret, who had access and what the records show - and that the defendant was aware of all this.

The defendant has the evidence, but there is a way to get to it

In the theft of intangible assets, there is a strong information asymmetry. The breach leaves no traces on you, and the key evidence - correspondence with clients, contracts, databases - is under the control of the offender.

In the classic civil process, documents from the opposing party are requested in an order that assumes they are precisely and specifically individualized. Requests for “all correspondence” or for documents whose content the plaintiff cannot specify in advance are regularly ignored.

The result is what legal theory calls devil’s proof: the court asks you to say exactly what is written in an email that you have not seen, in order to allow you to see it.

The Trade Secret Protection Act is the answer to this problem. The special provision of Art. 10, para. 3 of the Trade Secret Protection Act gives the court significantly broader powers — to oblige the defendant or a third party to provide information on produced and delivered quantities, on realized revenues, as well as the electronic or paper documents themselves containing the secret. These powers are borrowed directly from the European directive on the protection of intellectual property rights.

Only two things are required of the claimant, and neither of them is the content of the hidden documents:

• Reasonably available prima facie evidence — that is, enough to make the infringement seem probable without being fully proven. An audit log of a massive file download in the days before the departure is just such evidence.
• Indicating the medium — where the evidence is located. For example, correspondence between a specific person and a specific company over a specific period.

Notice how strongly the first point depends on the measures described in the previous section. The record of who downloaded what is not an IT formality - it is what opens access to other people's evidence.

If the court still takes a formalistic approach

You have a strong additional argument from European Union law. Member States have procedural autonomy to apply their procedural rules. However, it is limited: national rules should not make the exercise of rights granted by European law practically impossible or excessively difficult.

Refusal to request correspondence on the pretext that the claimant has not indicated what secret is contained within it contradicts this very principle. National courts are obliged to interpret the procedural rules in accordance with the objectives of the directives.

Will my secret become public if I file a lawsuit?

In short: not necessarily - but only if the lawsuit is filed on the right grounds.

The logical concern of every owner is the same. If he presents his database as evidence, won't he just give it to his competitor in open court? This fear has deterred businesses from bringing such cases at all for years.

The law provides for special confidentiality measures that any party can request. Upon a duly justified request, the court can limit the circle of persons with access to a specific document — database, source code, pricing — to a specific list of people, which is practically called a confidential circle. It can conduct the case or parts of it behind closed doors. A public version of the decision is also prepared, in which the passages containing trade secrets are deleted. Persons admitted to the secret during the course of the case are obliged to keep it after its end.

However, there is one significant limitation. Access by the parties themselves and their procedural representatives cannot be completely prohibited — the right to defense prevails over complete secrecy.

And one more important one. According to the practice of the Supreme Court of Cassation, these measures are applicable only in special proceedings for the protection of trade secrets. If you are conducting a general commercial dispute - for example, for the payment of a company share - and during it documents containing trade secrets are requested, the court has no grounds to impose restrictions, because the proceedings were not initiated for this purpose.

The practical consequence is that the legal basis of the claim predetermines whether you will have access to this protection at all. This is a decision that is made when preparing the claim, not later.

Compensation does not necessarily require you to prove lost customers

In the case of intangible assets, the connection between a data leak and a specific drop in turnover is extremely difficult to prove. Therefore, the law allows the compensation to be calculated using an abstract method, which the law calls a license analogy.

The method is based on a simple idea. The court puts itself in the place of the parties before the infringement and determines the compensation as the amount that the infringer would have paid if he had requested legal permission to use the information. In other words, rent for someone else's asset.

The biggest advantage is that you do not need to prove actual loss. The damage is objectively defined as the very entry into someone else's legal sphere and the use of the economic value of the information. It is enough to prove that the infringer acquired and used the secret in his activity. Even if he did not attract a single client, he used someone else's asset and owes for it.

How the expert opinion arrives at a number

The price of the secret is established with a forensic economic expert opinion using three approaches:

Two additions that are often missed. Choosing the abstract method does not exclude compensation for non-pecuniary damages, for example, for damage to reputation. And if the basis of the claim is proven, but the experts cannot fix an exact price, the court is obliged to determine the amount at its discretion, using the expertise as a guide. The claim is not dismissed just because the amount is difficult to calculate.

Can a former employee use his experience at a competitor?

In short: yes, and this is not a violation of a trade secret.

Here, the employer's interest in preserving his investments and the employee's fundamental rights collide. The European framework and Bulgarian law aim to prevent trade secrets from becoming a tool for retaining qualified personnel.

The law explicitly prohibits trade secret rules from being applied as a basis for restricting employees from using the experience and skills acquired in good faith in the work process. The employer does not own a trade secret in relation to the knowledge of its employees, even when it was acquired entirely by it.

The line is crossed only when the former employee takes with him specific documents, client databases or technical secrets that have been defined as confidential.

Two things follow from this that often surprise employers. Clauses completely prohibiting a specialized employee from practicing his profession in a competing company after the termination of the contract are null and void because they contradict the right to free choice of profession. And the very act of taking a job at a competitor or creating his own competing company is neither a violation of a trade secret nor unfair competition.

Therefore, the burden of proof is high. The plaintiff must prove that the defendant has provided specific information that goes beyond his personal skills. General knowledge of how to optimize a commercially available software platform is a professional skill, not a secret. A non-public database with individualized clients, negotiation history, and specific price discounts is.

The cost of missing preparation

The scenario is predictable and repeatable. The incident occurs, you file a claim, and you refer to the clause in the employment contract. The defendant objects that the information was never individualized and that there are no safeguards.

You ask the court to request his correspondence, but you have no record to support even an initial suspicion. The case is being tried under the general procedure, so special confidentiality measures are not applicable and you cannot protect your own data in the process. And even if you do reach a size, it is easily attacked because you did not state the abstract method.

None of this is due to a weak position on the merits. It is due to preparation.

Conclusion

Pursuing a trade secret case requires a balance. On the one hand, an aggressive use of special evidentiary powers to request the concealed evidence from the defendant. On the other, a timely request for a confidentiality regime for the information provided to protect sensitive data during the process itself. And above all this are the demonstrable protective measures put in place before the incident.

The outcome of any particular case depends on its circumstances and the evidence gathered. What can be planned in advance is your evidentiary position.