When a former partner becomes a competitor or a former employee takes customers, code, or know-how, the threat is existential for a technology company.
What constitutes punishable or civilly reprehensible conduct in technology
La protection of trade secrets and know-how is regulated in Spain by the Law 1/2019 on Trade Secrets, which defines what information can be protected and what measures are reasonable to keep it confidential.
When the departure of a partner or employee involves code copying, mass downloading of databases, systematically soliciting clients using confidential information, or disclosing algorithms, the conduct can be either civil (Unfair competition, breach of contract) as penal (mainly crimes relating to trade secrets, arts. 278 to 280 of the Criminal Codeand, if there was unauthorized access to or presence on systems, art. 197 bis CP; furthermore, according to the facts, other types could apply).
The distinction is crucial because it determines the speed and type of urgent measures available.
First 48 hours: immediate measures and prioritization of testing
Acting quickly saves businesses. Prioritize these actions in order:
- Preservation of evidence: Activate forensic server custody, log access, and create forensic images of devices.
- Access blockingRevoke credentials, change passwords, and activate access controls.
- Controlled communication: send a cease and desist letter well written to stop behaviors and document the complaint.
- Criminal evaluationIf there are indications of code copying or mass data extraction, consider filing an immediate criminal complaint. Criminal proceedings may enable investigative and seizure measures under judicial oversight, where appropriate.
These measures should be coordinated with a lawyer specializing in technology and, if necessary, with computer experts.
The technical evidence is the core of the case, and without it the strategy is weakened.
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Well-structured technology contracts prevent costly conflicts and roadblocks when scaling. This firm works with a limited number of technology projects.
Legal strategy according to the specific scenario
Former partner who creates a competitor using corporate information
If the former employee attract customers After leaving, the conduct will only be prosecutable if (i) there is a valid post-contractual non-compete agreement or (ii) the collection relies on confidential information/trade secret (e.g., lists and commercial terms protected by reasonable measures).
If there is code copying or data extraction, the priority is forensic testing and assessing civil and, where appropriate, criminal actions.
The precautionary measure can achieve cease/desist orders for use or disclosure of the secret, retention and deposit of infringing materials/goods and lien to ensure compensation; and, when necessary for the effectiveness of the protection, a specific order of withdrawal/suspension of certain online uses (e.g., pages or profiles) duly justified.
Former employee who takes clients or code
When the risk is customer churn or code copying, the priority is forensic evidence and criminal action if there is unauthorized access to trade secrets.
Meanwhile, a lawsuit for unfair competition and breach of contract contract You can seek compensation and reparations.
Corporate conflict that is blocking the company
If the corporate conflict prevents operational management, combine corporate measures (challenging agreements, requesting judicial administration, or measures to protect continuity) with commercial actions to isolate the troublesome partner.
The solution usually requires a hybrid strategy that includes forced negotiation and, if that is not possible, urgent litigation.
Risks and costs that the CEO must assess before taking action
Every action has trade-offs. Criminal measures are powerful but increase costs and reputational risk; precautionary measures are quick but require solid evidence; negotiation can be cheaper but is slow and risks leaks.
Decide according to target: stop now, recover assets, or neutralize the competitor in the long term.
A senior lawyer should present scenarios with probabilities and costs so that you can choose the option aligned with your business.
How to structure the evidentiary demand and external communication
La chain of custody Evidence and the intervention of computer forensics experts are crucial. Document access logs, emails, and forensic copies.
Avoid public communications that could harm your legal position.
If reputation is at stake, coordinate with a communications advisor who understands legal boundaries and the need to avoid contaminating evidence.
Strategic alternatives outside of court
Negotiating revised non-compete clauses, purchasing critical assets, trade non-aggression agreements, or arbitration can be effective and less disruptive solutions.
Arbitration is especially useful if there is a contractual clause that mandates it and seeks speed and confidentiality.
Conclusion
For a founder or CEO of a technology SME, the priority is control the damage quickly y preserve the evidence.
The decision between letter, precautionary, criminal or negotiation It must be based on an immediate technical and legal assessment that quantifies probabilities, costs, and reputational risks.
A senior lawyer with technological experience should present clear options and an operational plan for the the first 48 hours and the following 8 weeks.
Acting with sound judgment and speed is the difference between containing the threat and seeing how the conflict puts the survival of the business at risk.
FAQs
When there are signs of appropriation, dissemination or use of trade secrets (arts. 278–280 CP) and/or of unauthorized access to systems (art. 197 bis CP). The criminal route may allow investigative proceedings under judicial control when appropriate.
When there are indications of unauthorized access, code copying or massive extraction of data that fit the crime of discovery and disclosure of secrets; the criminal route allows urgent measures that the civil route does not offer.
Only if there is a valid and proportionate non-compete clause or if their conduct involves the use of trade secrets; otherwise, the restriction may be limited by courts.
And if he was also an administratorThe legal duties of loyalty and conflict avoidance, including abstaining from competition, may operate in terms of the corporate regime and its exemptions.
It can be obtained in days or weeks if the evidence is solid and the urgency is proven; effective execution depends on the jurisdiction and technical cooperation.
It depends on the scope: an initial letter and expert report are low to medium cost; precautionary measures and criminal proceedings increase the cost; lengthy and cross-border litigation significantly raises the investment. Request cost estimates and ranges before deciding.
RRYP Global, lawyers for international technology companies.
