July 21, 2014

Child Sexual Abuse Expert Witnesses On The Forensic Interview Analysis

In Child Sexual Abuse – Forensic Interview Analysis, child sexual abuse expert witnesses at Forensic Pediatrics Consultants – Child Abuse & Child Safety write:

The objective of a forensic interview in the context of child sexual abuse is to provide an objective measure to understand what a child potentially experienced. A forensic interview may be the tool utilized by protective and/or prosecuting authorities in a case of potential sexual abuse. Therefore, assuring the quality of the interview is an integral component to evaluating a potential case of abuse. A poor interview does not discount the possibility of sexual abuse. However, standard protocols exist to minimize the possibility of leading questions, and to assure as truthful and accurate information as possible.

Core components to forensic interview analysis include:

Documentation – Was the interview transcribed, audio-taped or videotape?

Number of interviews – Was the child interviewed before and how may that impact the forensic interview?

Types of Questions – Were there repetitive questions, either/or questions, and/or multiple questions that may lead to suggestive techniques?

Experience – Was the interviewer objectively and properly trained to conduct the interview?

Protocol – Were standard protocols utilized in the interview? These include:
• Building Rapport
• Establish the Need to Tell the Truth
• Explain to the child that it is fine not to know the answer to a question. It is fine to correct the interviewer.
• Start with general questions such as “Do you know why you are talking with me today?” Proceed, if necessary, to more specific questions such as “Has anything happened to you?” Drawings may help initiate disclosure.
• Elicit a Free Narrative
• Pose General Questions
• Pose Specific Questions if Necessary
• Conclude the Interview

Read more: http://childabusepediatrics.com/.

July 15, 2014

School Crisis Preparedness Expert Witness On School Attack Plots

At the Safe Havens International website, school crisis preparedness expert witness Michael S. Dorn writes on school attack plots. Dorn is Executive Director of Safe Havens International, a non-profit school safety center.

School Attack

A Minnesota teen revealed to police the extent of his plans for a school attack. His plan was to “destroy everyone”. He planned on entering Waseca Junior and Senior High School, throwing Molotov cocktails and pipe bombs. When the SWAT team arrived, he planned on killing himself.

He planned on killing his family as well, as he “wanted as many victims as possible”. He acknowledged that they had done nothing wrong, that he had not been bullied, and claimed mental illness as the source of his violent fantasies. He worked to hide them from others, especially his family.

School Attack Analysis

Here we see another school attack plot based upon Columbine, the unholy gift that keeps on giving. Like other school attacks, the perpetrator was going to kill himself at the first sign of armed opposition. Like other school attacks, the plan was to involve explosives, seeking a high body count.

According to audio tapes of his interrogation, the attacker hid his plans from everyone, yet there were You Tube videos posted showing him playing with knives and experimenting with homemade explosives. This is called leakage, and is one of the warning signs to look for...

Schools should be training their staff to look for these warning signs, and should have multidisciplinary threat assessment teams to evaluate students that exhibit clusters of signs. The US Department of Education has created a great tool, along with the U.S. Secret Service. Schools can conduct a threat assessment inquiry, in which the school seeks to assist the student. They can also conduct a threat assessment investigation, for those times in which a threat has been made.

In either case, the goal is to get as many qualified, trained minds working on the assessment as possible. This assessment requires a working relationship with local first responders. It also requires a lot of coordination.

Plan well, plan ahead.

Read more: safehavensinternational.org.

July 11, 2014

Oncology Expert Witness On Malpractice Insurance Part 1

In Malpractice Premiums Drop for 6th Straight Year, oncology expert witness Dr. Judy L. Schmidt writes:
Judging by 3 representative specialties, physicians in 2013 are once again experiencing relief on malpractice insurance premiums.

Collective rates for obstetrician-gynecologists, internists, and general surgeons fell on average for the sixth straight year in 2013, according to an annual premium survey released this week by Medical Liability Monitor (MLM).

The decrease is only 1.9%, a tad more than the 1.7% decline in 2012. However, one group views the ongoing premium shrinkage as more evidence that organized medicine’s push for tough medical-liability tort reform, such as limits to noneconomic damages, is much ado about very little.

“It makes sense that premiums are going down because malpractice litigation is going down,” said Taylor Lincoln, a research director for the consumer watchdog Public Citizen, in an interview with Medscape Medical News. Lincoln’s organization announced in August that the number of malpractice payments on behalf of physicians as reported to the National Practitioner Data Bank fell for the ninth consecutive year in 2012. Public Citizen maintains that malpractice litigation cannot be blamed for runaway healthcare costs.

Asked to comment on the numbers from MLM, the American Medical Association (AMA) issued a statement from its president, Ardis Dee Hoven, MD, to Medscape Medical News:

Although the 2013 Medical Liability Monitor [survey] suggests decreases in premiums have become more common than premium increases, they pale in comparison to the magnitude of the increases experienced during the most recent liability crisis,” said Dr. Hoven. “We are committed to testing alternative reforms, such as safe harbors for the practice of evidence-based medicine, to determine if these innovations can improve patient care and reduce costs.

The AMA, she said, “continues to work for proven reforms to rein in the broken medical liability system, reduce the growth of healthcare costs, and preserve patients’ access to medical care.”

Chad Karls, an actuary who summarized premium trends in an article for MLM, sees both sides of the argument. For proponents of tort reform, “the wind has been taken out of their sails a little bit,” said Karls, a principal and consulting actuary for Milliman. “Premium costs are lower than what they were a decade ago. However, it doesn’t necessarily mean that they shouldn’t be lower.”

Falling premiums, Karls told Medscape Medical News, reflect a roughly 50% drop in malpractice claims per physician since the liability crisis in the early 2000s that the AMA references. In both 2003 and 2004, premiums shot up roughly 20%, according to MLM. State-level tort reform accounts for some of the decrease in malpractice claims, Karls said. However, claims frequency also has declined in states that lack such laws.
The 1.7% drop in premium rates this year for the combined specialties of obstetrics-gynecology, general surgery, and internal medicine, Karls noted, applies more or less to each individual specialty as well. In other words, it isn’t as if decreases for 2 specialties erased an increase for the third.

Read more: Quality Cancer Care

July 8, 2014

Automotive Engineering Expert Witnesses

What areas of the auto industry may automotive engineering expert witnesses consult on? They may provide reports concerning automobile defects, automotive technology, automotive components, and automobile design. In the news, the U.S. Department of Transportation announced record fines and unprecedented oversight requirements in its GM investigation…

Over the past ten years, NHTSA defect investigations resulted in 1,299 recalls involving more than 95 million vehicles and items of motor vehicle equipment, which has helped the agency to reduce vehicle fatalities to historic, all-time lows. Including today’s consent order, the agency has obtained record fines of $124.5 million in the last five years from automakers who have failed to promptly report defects to NHTSA. NHTSA.com briefing room:

The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) today announced that General Motors (GM) has agreed to pay a record $35 million civil penalty and to take part in unprecedented oversight requirements as a result of findings from NHTSA’s timeliness investigation regarding the Chevrolet Cobalt and the automaker’s failure to report a safety defect in the vehicle to the federal government in a timely manner. The defect resulted in the non-deployment of airbags in certain Chevrolet Cobalt and other GM models. This action represents the single highest civil penalty amount ever paid as a result of a NHTSA investigation of violations stemming from a recall.
As part of today’s agreement, set forth in a Consent Order signed with NHTSA, the agency also ordered GM to make significant and wide-ranging internal changes to its review of safety-related issues in the United States, and to improve its ability to take into account the possible consequences of potential safety-related defects. GM will also pay additional civil penalties for failing to respond on time to the agency’s document demands during NHTSA’s investigation.

Federal law requires all auto manufacturers to notify NHTSA within five business days of determining that a safety-related defect exists or that a vehicle is not in compliance with federal motor vehicle safety standards and to promptly conduct a recall. GM admits in the Consent Order that it did not do so.

Today’s action is historic in that the provisions of the Consent Order will be immediately enforceable in federal court if GM does not fully comply. The Consent Order will hold GM accountable, push the automaker to make needed institutional change, and ensure that replacement parts are produced quickly and recalled vehicles are repaired promptly.

July 6, 2014

The Scope Of The Child Sexual Abuse Expert Witness

This week police in Beaverton, Oregon, arrested 17 year old swim coach Mitchell Alan Douglas Kelly who is accused of sexually abusing two young girls at the Sunset Athletic Club. The girls were taken from the pool area to another part of the facility, according to Sgt. Bob Ray. Investigators for the Washington County Sheriff's Office are concerned there may be other victims.

In this type of case, child sexual abuse expert witnesses may testify regarding sexual misconduct, sexual molestation, and child sexual assault. These professionals may provide reports concerning sexual exploitation and statutory rape. On its website, The American Board of Pediatrics describes the child abuse pediatrics practice scope which includes:

Understand the commonly used definitions of child sexual abuse.
Know the overall incidence and prevalence of sexual abuse of children and adolescents.

Know the general risk factors for sexual abuse by the age of the victims.

Understand the characteristics of children and adolescents that may place them
at risk of being sexually abused.

Understand family dynamics that may place a child at risk for sexual abuse.

Understand the role of childhood sexual abuse of a mother as a risk factor for the
sexual abuse of her children.

Describe societal and cultural factors that may place a child at risk for sexual abuse.

Psychosexual development
Know the stages of psychosexual development of children.

Recognize when a child's sexual behavior is not appropriate to his/her developmental stage.

Differentiate between normative sexual behaviors and sexual behavior problems in children.

Recognize that sexual behaviors can be a sign or consequence of child sexual abuse.

Know the social and behavioral factors (e.g. abuse, IPV, mental illness, exposure to sexually explicit materials, conduct disorders) that can be associated with sexual behavior problems in children.

July 3, 2014

Aviation & Airports Expert Witness On Pilot Error

On his website, dviaviation.com, aviation and airports expert witness Steven J. Meyers, discusses pilot error. Mr. Meyers is an experienced aircraft accident investigator, and has work experience as an engineer, pilot, and mechanic.

Human beings are unpredictable as compared to physical evidence, and in the absence of cockpit or flight recorded data, investigators are left with evaluating human behavior from a percentage of likelihood. Most investigators typically lack adequate training to properly evaluate human behavior and performance, because there are such a large and diverse number of reasons that pilots can commit an error. Pilots make errors because they have not been adequately trained to perform tasks, or because they do not have the basic ability to perform the task even if they were trained. They commit errors because the task is beyond normal human abilities. They commit errors because they misinterpret information important to the performance of the task. They commit errors because some event occurring during the performance of the task changes the nature of the task in a way that they have never encountered. They also commit errors because of influences such as stress, distraction, fatigue, illness, visual illusions, spatial disorientation, old age, immaturity, and cultural beliefs. Pilot performance is also influenced or affected by such issues as cockpit design, temperature, altitude, physiology of the body, emotions, interactions, and communications.

Some common Human Factors issues related to piloting error can include:
• Spatial disorientation
• Not trusting instruments
• Loss of attitude references
• “Saving your baby”
• Extending emergency landing
• Failure to abort takeoff or landing
• Turning back to land on runway after engine failure
• Overconfidence or complacency
• Over-gross takeoff weight
• Lack of training
• Showing off
• Flying in severe weather
• Situational awareness
• Scud-running
• Obstructed vision
• Lack of scanning outside of cockpit
• Landing into wake/vortex turbulence
• Depth/distance perception
• Flaring too high during landing
• Botched landing approaches at night
• Training-related mistakes
• Stalls during takeoff or maneuvering
• Vmc rolls
• Cockpit management
• Fuel exhaustion or starvation
• Poor crew coordination
• Improper instrument settings
• Cabin inadequately secured during takeoff
• Improperly cross-referencing instruments
• Too much happening all at once
• Hypoxia
• Cabin depressurization
• Simply flying too high without using oxygen
• Sleep deprivation or lack of crew rest
An Example of Human Factors in Piloting Error: Empty Field Myopia
Empty field myopia (empty space myopia) is a condition in which the eyes, having nothing specific within the available visual field upon which to focus, focus automatically at a range of the order of a few metres ahead. Detection of objects outside this restricted field of view is delayed and if an object of interest does enter the restricted field of vision, the determination of its size or range would be problematic. The higher risk probability is distributed among general aviation flights conducted outside controlled airspace, or any flights in such airspace and conditions with predominant see and avoid rules and where the ATC assistance to avoid loss of separation (LOS) is limited.

There are several identified conditions when the eyes often tend to turn back to their natural resting state in flight on very dark night with no stimuli outside the cockpit to focus on, in hazy conditions when the optical properties of the atmosphere alter the appearance of aircraft and terrain, in bright light and glare when the flight is conducted in very sunny conditions over a cloud layer or due flight course set into the direction of the sun, and flying over snow covered and desert surfaces with predominantly featureless ground characteristics and over large bodies of water; the risk factor is especially high for low level inspection flights and military low flying assignments.

DVI’s Pilot Experts are experienced airline, corporate, and general aviation pilots and instructors. Many of our Pilot Experts are Designated Pilot Examiners and Check Airman for major airlines. All of our Pilot Experts, as well as our, Aviation Human Factors Experts understand the nature of errors and how to apply and correlate human performance to determining the cause of an aircraft or ground accident.

July 1, 2014

Business Expert Witness Describes The Role Of The Forensic Accountant

On his website FAQ, business expert witness Richard Teichner, CPA, CVA, CDFAJ, describes the role of the forensic accountant serving as an expert witness.

When explaining complex financial analyses to the trier of fact, it is imperative that your expert witness is skilled at clearly and accurately explaining the details in a manner that can be easily understood. Expert witnesses also must be objective and utilize generally acceptable practices in order for their testimony to be credible and admissible.

How can a forensic accountant help my case?
Forensic accountants can assist throughout the litigation process. During discovery and fact-finding, they can aid your investigation by advising you on what documentation you should obtain. They can also help you identify the accounting and valuation questions pertinent to your case, which includes their assistance with formulating requests for production, interrogatories, and questions to be asked of witnesses at deposition and trial. Thus, this process can help you streamline your trial strategies and the focus of your case. The earlier you hire your forensic accountant in the litigation process, the more assistance and support you will likely receive.

What qualities should I look for in selecting a forensic accountant?
There are a number of qualities you should look for when selecting a forensic accountant to work with on your case. The following summarizes some of the factors to consider in selecting a forensic accountant or valuation consultant on a legal matter:
• Experience: How many years of practical accounting experience and expert consulting experience do they have?
• Education: Are they licensed as a Certified Public Accountant? Do they have any professional designations? Do they stay current with continuing education courses, books and publications?
• Ability to communicate: Will they be able to clearly express complex accounting theories and explain financial issues in a manner a jury can understand? Have they given presentations to attorneys and other professionals?
• Impartiality: Will they be objective? Have they served as a consultant both to plaintiffs and the defense in litigation matters?
• Credibility: Do they appear to be honest and believable? How do you think they will be perceived by a judge or jury?
• Support: In the preparation of your case for trial, how much advice and support do you think they will offer? Do they appear to be committed to your case without being biased?
• Confidentiality: Do they understand the importance of the attorney-client relationship? Do they have experience with handling highly sensitive documents?
- See more at: Richard Teichner.

June 29, 2014

Automotive Engineering Expert Witnesses & Auto Defects

Automotive engineering expert witnesses may consult regarding automobile defect, automotive technology, automobile design, and the auto industry. General Motors announced more recalls last week with a 2014 total so far at 48. The most recent recall covers 474,000 pickups and SUVs. US automakers have recalled 32.4 million vehicles in less than six months. GM said a software glitch can cause “the transfer case to electronically switch to neutral without input from the driver” on 2014 and 2015 models.

GM.com reports:

General Motors (GM: NYSE) today announced four safety recalls covering 428,211 vehicles in the United States.

• Dealers will replace the driver’s side air bag inflator in 29,019 2013-2014 model year Chevrolet Cruze sedans in the U.S. and 4,066 in Canada. The inflator in the driver’s front air bag may rupture and/or the air bag may not inflate during air bag deployment. A rupture could propel metal pieces of the inflator into the vehicle cabin, possibly striking and seriously injuring the driver or other vehicle occupants. Additionally, if the inflator does not inflate the air bag, there is an increased risk of injury to the driver. GM is aware of one injury related to the issue.

• Dealers will recalibrate transfer case control module software in 392,459 full-size pickup trucks and SUVs in the U.S. and 53,607 in Canada. An additional 20,874 were sold outside the U.S. and Canada. Affected are four-wheel-drive versions of the 2014-2015 Chevrolet Silverado and GMC Sierra; the 2015 Chevrolet Tahoe and Suburban; and the 2015 GMC Yukon and Yukon XL.

In these vehicles, the transfer case may electronically switch to neutral without input from the driver. If this occurs while a vehicle is in motion, no power will go to the wheels. If the vehicle is stopped or parked, it may roll away if the parking brake is not set. GM is not aware of any crashes or injuries related to this issue.

• Dealers will inspect, and replace if necessary, the windshield wiper module assembly in 4,794 2013-2014 model year Chevrolet Caprice police cars and 2014 Chevrolet SS sport sedans in the U.S. If the motor gear teeth become stripped, the wipers may not operate. GM is not aware of any crashes or injuries related to this issue.

• Dealers will replace the two rear shock absorbers in 1,939 2014 model year Chevrolet Corvettes in the U.S. with the FE1 or FE3 suspension to repair a possible insufficient weld in the rear shocks that could lead to a fracture and/or reduce the shocks’ service life. Thirty-three additional vehicles were sold in Canada and another 82 were exported. GM is not aware of any crashes or injuries related to this issue.

June 28, 2014

Pyramid Scheme Expert Witness On Herbalife

Pyramid scheme expert witness Dr. William W. Keep was in the news this week urging SEC chief Mary Jo White to intensify the investigation of Herbalife. The FTC recently closed pyramid scheme BurnLounge, the New York City online music store and Dr. Keep, business dean of the College of New Jersey, recommended that multilevel marketing companies submit their enforcement policies to regulators every five years. Herbalife is a global nutrition company founded in 1980. The company has over 7,400 employees worldwide, and its shares are traded on the New York Stock Exchange with net sales of $4.8 billion in 2013.

Herbalife.com commented on the recent ruling by the Ninth Circuit Court of Appeals in its decision in FTC v. BurnLounge, Inc. Herbalife issued the following statement:

Today's decision by the United States Court of Appeals for the Ninth Circuit in the FTC v. BurnLounge, Inc. validates product consumption by participants as a legitimate measure of demand for multi-level marketing companies and rejects Bill Ackman's fundamental thesis against Herbalife. This ruling from one of the country's most influential courts is consistent with Herbalife's position that the widespread demand Herbalife has demonstrated for its products, by members and non-members alike, confirms that it is a multi-level marketing company with proper business practices.

SEC.gov describes pyramid schemes:
In the classic "pyramid" scheme, participants attempt to make money solely by recruiting new participants into the program. The hallmark of these schemes is the promise of sky-high returns in a short period of time for doing nothing other than handing over your money and getting others to do the same.

The fraudsters behind a pyramid scheme may go to great lengths to make the program look like a legitimate multi-level marketing program. But despite their claims to have legitimate products or services to sell, these fraudsters simply use money coming in from new recruits to pay off early stage investors. But eventually the pyramid will collapse. At some point the schemes get too big, the promoter cannot raise enough money from new investors to pay earlier investors, and many people lose their money. The chart below shows how pyramid schemes can become impossible to sustain.

Perhaps the most publicized pyramid/Ponzi scheme is that of Bernard Madoff who made an admission to his sons that his investments were "all one big lie." As of December 2008 the losses were estimated to be $65 billion, making it the largest investor fraud in history.

June 25, 2014

Credit Damage Expert Witness On Evaluating Credit Damage Part 2

In Evaluating and Understanding Credit Damage, credit damage expert witness Doug Minor writes:

One of the first steps is to examine the credit score itself. This seemingly straightforward action can become complex very quickly, as there are often numerous reports, with scores from multiple sources. So, a consumer will many times have a number of credit scores, each reflecting the data and scoring criteria of its source. Understanding the different features of each type of score and report is an important evaluation skill that an expert should have to accurately quantify credit damages.

For example, is the score a FICO score, or a Vantage score? Is the report a business-to-business (B2B), or a business-to-consumer (B2C) product? Was it a residential mortgage credit report (RMCR), or a three repository merged credit report (TRMCR)? When was the report produced? All of these are typical questions that an evaluator will ask, and in most cases they are necessary.

Before deciding whether to extend credit to an individual, lenders typically purchase credit reports and scores that provide information from one or all three of the major credit bureaus (Equifax, Trans Union and Experian). These scores reflect the credit-related events in the life of an individual going back several years. Each of those events can ultimately be assigned a value, positive or negative, that contributes to the overall score. Some lenders may average these numbers to determine a person’s creditworthiness, or focus on just one score (or report) from a particular credit bureau. In the mortgage industry it is common practice to pick the middle of three scores, or the lower of two if only two are available.

The companies that compile this information can produce a variety of reports, depending on the needs of their clients. The reports they provide for credit issuers are typically more detailed than the ones that are accessible to the consumers themselves. So, an expert attempting to assess the credit impact of specific events should consult these more complete reports whenever possible. But an experienced credit damages expert can make valid judgments based on information found in many types of reports.

Among the next steps, it is important to establish the subject’s credit and economic status before the harmful event(s). Then it can be compared to the status afterward. This provides measurable data, which can be used to quantify harm. For example, a foreclosure or bankruptcy might cause an individual’s score to drop between 100 and 250 points. This can cause demonstrable financial harm in variety of ways—not to mention emotional stress. And the effects may last for many years. If another party—acting through malice or negligence—was the proximate cause of that harm, there is a good probability that the victim deserves to be compensated.

As the credit damages field gains exposure, attorneys will inevitably become more familiar with it, and more confident to factor it into their cases. Realizing that such damages can be accurately quantified is still a revelation to many practicing lawyers. But the most convincing proof is the growing record of successful credit damages cases. That suggests that this relatively new field will gain importance in years to come.

Doug Minor is a credit damages expert and credit counselor. He serves as an expert witness and litigation consultant, with specialized expertise in the Fair Credit Reporting Act (FCRA) and Fair and Accurate Credit Transactions Act (FACTA). He is FCRA (Fair Credit Reporting Act) certified by the Consumer Data Industry Association (CDIA), which is the trade association of the credit reporting agencies. His company, Easy Credit Relief, Inc., provides a range of consumer services to help people understand and recover from credit problems. Please see Doug Minor.

June 22, 2014

Dentistry Expert Witness Testifies Re: Dentist Office Death

Dentistry expert witness Dr. Gary Pearl testified on behalf of the Connecticut Department of Public Health in the case against Dr. Rashmi Patel. State health officials are trying to permanently revoke Patel’s dental license after the death of Judith Gan. Gan died an hour after getting implants and 20 teeth extracted in Patel’s office. During the procedures, the retired librarian’s vital signs dropped and dental assistants asked him to stop. By the time 911 was called, Gan had no brain waves or heartbeat.
While Dr. Patel says he did nothing wrong, state health officials suspended his license in April. Dr. Pearl testified "It's my belief that (Gan) did not have to die to receive this dental treatment and it is because of… Patel's negligence that she died."
In 2013 a male patient was being treated for an extraction that resulted in a six day hospital stay for heart and lung damage. The patient's throat pack was sucked into his lungs.
The Connecticut Department of Public Health website describes the investigation process.

The process starts with a complaint. The department investigates a person whom it suspects has engaged in some wrongdoing or suffers from a condition that interferes with safe practice. That person is referred to as a Respondent. The department may become aware of a Respondent from a number of
different sources such as: a person affected by the respondent such as a patient, an institution such as a hospital, peer or work supervisor, a separate unit of the Department of Public Health, notice in the media, TV, newspaper, etc., filing of a civil suit, etc….

The department may ask professionals practicing in the same field as the respondent to review the department’s case. These professionals are referred to as consultants. At times, the use of consultants may cause a delay in the investigation due to the consultant’s busy schedule at his/her own practice, as well as his/her responsibility to thoroughly evaluate the case. The reason for seeking the opinion of a consultant is to determine whether the respondent’s alleged conduct falls below the standard of care for that field. The investigation may take a few weeks or it may take longer than a year to complete.

June 18, 2014

Trade Secrets Expert Witness On Misappropriation

In Trade Secret Misappropriation of Software, trade secrets expert witness Gary Stringham writes on his blog:

A trade secret is something that provides an advantage to the company that owns it. It could be formulas, software, even lists of names. A trade secret is not disclosed publicly (unlike a patent).

If a company wishes to mark something a trade secret, it must proactively take action to protect those secrets. Employees of the company should have signed an agreement to keep secret company confidential information. If the trade secret needs to be disclosed to non-employees, those people need to first sign non-disclosure agreements.

Misappropriation of trade secrets consists of someone, who knew the trade secret, using it in a non-permissible fashion. It is not uncommon for employees of a company to leave and start up their own company to create a “better” and competing version of the product. They have to be very careful to not use any confidential steps, procedures, software, concepts, etc., in their new product. Even if they were to write their software code from scratch, if they use any algorithms, procedures, processes, or other confidential concepts from their former employer, it is in violation. If they use electronic or paper copies of software source code to guide them in writing new code from scratch, that is in violation. It is also theft.

Proof of trade secret misappropriation requires that the alleged violator must have somehow obtained those secrets from the owner. It could be through a former employee. It could be through an outsider that had signed a non-disclosure agreement. It could be theft by physically or electronically breaking in and stealing the secrets by copying documents, design guides, and/or software source code.

If Company B happens to independently create Company A’s secrets, but had done so without any knowledge that Company A even had those secrets and had marked them as such, then Company B is not misappropriating Company A’s secrets.

The concepts and examples I’ve written here are brief and incomplete. Closer examination is required on a case by case basis to determine if there was misappropriation of trade secrets.

Gary Stringham & Associates, LLC, is an engineering consulting and training firm in the software, firmware, and hardware domains. Gary helps clients with their design, debugging, integration, and litigation.