One of the most important pieces of advice I can give any lawyer is very simple (and maybe very obvious): listen to your client.
Many of my clients are small business owners. As corporate counsel, it is critical for me to understand the dynamics that affect my clients' business operations. This week, when working on a draft non-compete agreement, a client caught something that was missing from the form document off of which I start the drafting process.
A provision that deals with cloud computing.
It is standard procedure in my non-compete agreements to have some provision calling for the return of business materials upon termination of employment. Those clauses also call for an inspection opportunity, such that an employer can verify company data isn't maintained on personal thumb-drives, tablets, or smart phones after termination.
However, my form agreement did not mention cloud computing or cloud storage. By now, most attorneys are aware that documents and data can be stored in the cloud. Cloud storage basically means that information is stored online in a pool hosted by a third-party. It provides employees the opportunity, for instance, to access information following departure even if their personal laptop or tablet device appears "clean." It is similar (and far more advanced) than the situation involving employees who have old company e-mails maintained in a web-based e-mail system, which provides ease of access.
Employers should consider restricting the ability of employees to store documents in the cloud. In my opinion, the availability of easy-to-use cloud storage platforms (such as iCloud) creates a potential problem that employment agreements may not address.
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