The Administration of Justice in a Changing World

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  by John A. Bello

   Voice of the Judiciary

My appointment as Court Administrator took place amid several crises –a raging pandemic and a racial reckoning, as well as a charged political discourse across the country.  While these crises affected daily lives at the courthouse and at home, the court system saw them as an opportunity to learn about individual differences as we advanced our systems to improve how courts worked during the pandemic to ensure accessibility for the public.  The tremendous challenges we now face cannot be handled by any one person, but as members of the court system, we can use all of our experience  to move the Trial Court to the next level.

The Trial Court family has been tested by the ongoing pandemic but that has not slowed the progress we are making as a system.  Our judges, elected officials, and staff have given beyond their best to ensure that we continue delivering justice.  I would like to take this opportunity to thank them for their many sacrifices during the pandemic.  Judges, Clerks and Registers Offices, Probation, Security and Facilities staff have gone above and beyond to keep our doors open.  I would also like to thank those who partnered with us along the way to keep the justice system running.  It was not an easy task but collaborating broadly made it possible.

Trial Court Chief Justice Paula Carey and I have an ambitious agenda that is outlined in our Strategic Plan 3.0.   I am confident that we can accomplish these goals by being inclusive and recognizing the many contributions made at all levels of this organization.  Transparency and collaboration with internal and external stakeholders will help us focus and deliver on the important work we face today and moving forward.  In my experience, collaboration always results in a better solution to any issue.

Technology Enables Access to Justice

Where do we start?  We must build on the Court’s progress during the pandemic.  Today, we find ourselves in a better place technologically than we were in a year ago, which expands our options for serving the public and makes it easier for those who work and practice in our courts.  As devasting as it has been, the pandemic has accelerated our strategic initiatives.  We must keep this momentum going as we recover from the most challenging impacts of the pandemic and resume business in a “new normal.”  Our staff has demonstrated resilience, creativity, and commitment, and as leaders we must ensure that we support them along the way.

Access to justice and the court user experience are our top priorities as we aim to have systems in place to deliver justice for ALL.  Concurrently, we need to better understand how users experience the system and to act swiftly on issues raised by users and by our staff.

Investment in technology at this historic juncture is critical.  We must provide judges and staff with the tools they need to do their jobs in a digital world.  eCourts must be our collective priority along with sufficient staffing so we can modernize how we work and serve the public.  A $164 million IT Bond Bill now in the legislature sets a roadmap for the investments needed to build a 21st century court system.  This bond bill represents an access to justice imperative to ensure that members of the public have access to our courts – whether in person or from home.

During the pandemic, virtual registries were created, as eFiling and eNoticing expanded to modernize access to justice.  For example, the Probate Court developed a pilot with the Department of Revenue and, since October, has heard 300 child support cases per week via Zoom, and has heard 1,000 uncontested divorce cases using the same method.  Post-pandemic, we will build upon these innovative, user-friendly solutions that positively impact thousands of lives.

Racial Justice Requires New Mindset

As a justice system, we also must deal head-on with racial justice issues and the problem of systemic racism.  We need to be able to have conversations affecting people of color and develop system-wide practices that recognize and combat racism.  The Trial Court cannot tolerate injustice of any kind and we are fully committed to this work.  Court leaders must ensure that the system treats court staff, attorneys and the public with dignity and respect.  As individuals, we must broaden our mindset and continue learning about others, engaging constructively to ensure that everyone is represented at the table.  Representation does matter.

This is a personal issue for me.  I came from the Dominican Republic 30 years ago to face the challenges of bias and discrimination from some, as well as support and encouragement from others.  In my experiences at the Trial Court, I have witnessed how diverse representation can create an inclusive, supportive organization that can better address the needs of colleagues and the public we serve. 

The unsettling events of 2020-2021, including the passing of Supreme Judicial Court Chief Justice Ralph Gants, left many with no place to turn with their distress.  The Trial Court established a Trauma Task Force, which helped support those needing assistance on how best to deal with the uncertain world around them.  We facilitated many discussions regarding the pandemic, racial reckoning, and political unrest nationwide.  As co-chair of this highly committed group, I hope to expand training to help judges and staff deal with the traumatic events to which they are regularly exposed.  

We plan to engage the broader justice community to help us not only create a trauma-informed workforce, but also a trauma-informed justice system.  We have engaged with One Mind at Work, the Institute for Health Recovery, as well as Riverside Trauma Center to ensure our system has the resources available to understand and deal with trauma and mental health issues.

Organizational Development Through Skills and Data

Post-pandemic, we will refocus on fostering a high performing organization with clear goals and expectations, as well as providing our staff with career development opportunities through training and networking.  Our Human Resources department and Judicial Institute are finding new ways to support individual skill-building and advancement.  Technology again is key.

Over the years, I have relied heavily on data to make informed decisions.  Data quality and consistency are essential for the Trial Court to move forward.  Accurate data allows local courts to assess their work and provides the public with the tools to help understand what courts do and why.  Accurate data entry and collection represent another critical issue for the Trial Court and our justice partners.  Together, we must find new ways to aggressively tackle this challenge. 

There is much to accomplish but I know that with continued support from Trial Court staff, elected officials, judges, and the Bar we will expand on the current momentum.  I want to understand your challenges and hear your ideas for improving the system.  I look forward to building relationships with partners in justice across the state to collaboratively deliver on the Trial Court’s one mission: Justice with Dignity and Speed.

The Supreme Judicial Court appointed John A. Bello to a five-year term as Court Administrator for the Massachusetts Trial Court as of March 1, 2021. In 2017, Bello became Associate Court Administrator after serving as the Director of Facilities Management and Capital Planning since 2013.


Protecting Trade Secrets During (and After) a Global Pandemic: Practical Tips for Employers

by Russell Beck and Hannah Joseph

Practice Tips

 

The evolution toward a cloud economy has made it easy and often profitable for employees to misappropriate valuable data from their employers. Indeed, pre-pandemic estimates suggested that over 50 percent of employees take – and most of them are willing to use – their employer’s information when leaving a company.[1]

Against this backdrop, COVID-19 unexpectedly caused the world to shut down in early 2020, resulting in mass layoffs, the highest unemployment rates since the Great Depression, and a fundamental and perhaps permanent shift toward a predominately remote workforce.

Together, these factors have created a precarious environment for trade secrets, as well as customer relationships and other legitimate business interests. Employees working from home have more opportunity to convert company information and customers, and some, particularly those facing involuntary unemployment, may feel driven to do so. Moreover, the ongoing crisis has made preliminary injunctive relief (the judicial remedy most often used to protect trade secrets and other legitimate business interests) more elusive, as courts are typically less willing to restrain employees from competitive employment during economic downturns. See, e.g., All Stainless, Inc. v. Colby, 364 Mass. 773, 781 n.2 (1974).

Whether during or after the pandemic, it is vital for companies to have strong measures in place for protecting their trade secrets and other legitimate business interests, rather than to solely rely on after-the-fact litigation. Below are some practical tips for how to do so.

Tips for protecting trade secrets and other legitimate business interests during and after a global pandemic

Know your trade secrets. A remote workforce means that employees are developing, accessing, and using their employer’s trade secrets from home (and elsewhere). Accordingly, understanding the categories, sources, and life cycles of the company’s trade secrets, and the risks of exposure to which such information is most susceptible, is necessary for establishing and implementing policies and practices that are best suited to protect that information during and after the pandemic. Depending on the organization, the analysis will likely need to involve management, human resources, legal, corporate governance, sales, information technology, information management, research and development, manufacturing, and other relevant stakeholders.

Firm up policies and procedures. Once a company has categorized its trade secrets, both existing and under development, it must ensure that its policies and procedures are appropriately designed to protect the information against likely sources of risk. Such policies and procedures, which should be reviewed on a regular basis, are also critical to protecting other legitimate business interests, such as customer goodwill.

Among other things, employers should have policies that establish clear criteria, protocols, and expectations for the access, use, and disclosure of confidential information, including third-party information; working from home; the use of the employer’s devices, systems, and accounts (and, if applicable, the employer’s policies concerning monitoring such devices, systems, and accounts); the use of personal devices; the use of social media accounts, including as they relate to client communications; the use and protection of passwords; and the post-employment return of information and property. In addition, employers should have a policy that instructs employees to report incidents of unauthorized access, use, or disclosure of confidential information, and provides clear instructions for how to make such a report. This list is not comprehensive, and policies are not one-size-fits-all; they must be tailored to meet the unique needs of the employer and be reasonable in the context of the company’s needs, capabilities, and culture.[2]

Employers should also work closely with their remote employees to ensure that the employees’ at-home work environments are secured against both external threats and inadvertent disclosure. For example: home Wi-Fi routers should be secured with strong passwords; passwords, non-guessable meeting IDs, and other security settings should be used for video conference solutions like Zoom; confidential information should not be reviewed where others in the household may see or overhear it; and confidential information should not be left out in the open when the workspace is unattended. Employers should be prepared to run through a comprehensive checklist with their employees to make sure that employees are taking necessary precautions to protect their workspaces.

Finally, the unfortunate reality of increased furloughs and layoffs during the pandemic dictates that employers have a system in place for off-boarding employees remotely. The system should include, at the least, a mechanism for terminating exiting employees’ access to the employer’s information and information systems (including the remote wiping of company data from devices in the employee’s possession), for securing the full return of all equipment and confidential information, and for the employee to acknowledge their obligation to return (and not retain, use, or disclose) the employer’s confidential information (as well as to comply with their other post-employment contractual obligations).

Educate your employees. Policies and procedures are worthless, and can hurt more than help, if they are not disseminated, understood, and followed. This means that employers must, on an ongoing basis, educate their employees about company policies and practices. While in-person trainings are ill-advised in the era of social distancing, they may be easily replaced by online trainings, whether live or pre-recorded. Processes should be in place that require employees to not only read the policies and procedures, but also to acknowledge that they understand and agree to abide by them. Policies and procedures should provide an avenue for employees to ask questions and obtain answers that will be consistent throughout the company, either through legal or other channels. Employers are well-served by maintaining accurate records of policies and procedures and any amendments thereto, training dates, and employee acknowledgments. While training and acknowledgments will not necessarily prevent all willful misconduct, they may serve as a deterrent, help to limit incidents of inadvertent disclosure (or unauthorized solicitation) and, if litigation becomes necessary, help to establish the company’s reasonable efforts to protect its trade secrets and other legitimate business interests.

Monitor your workforce. Trade secret misappropriation and other forms of employee misconduct do not usually happen in a vacuum. Oftentimes, there will be warning signs that an employee is unhappy (e.g., a lack of engagement, an attitude shift or sudden change in behavior, increased activity on LinkedIn[3]). Moreover, employees who take their employer’s information with the intention of using it at their next place of employment frequently commit multiple acts of taking in the days and weeks leading up to their termination. Similarly, employees who plan to solicit customers may begin well before termination. For those reasons, employers should consider monitoring their employees’ email activity as well as their activity on other information systems to determine whether the employees are accessing information that they do not have a business need to know or are accessing appropriate information, but with unusual frequency. Periodic monitoring may enable an employer to detect and address internal threats earlier, thereby obviating the need for judicial intervention. Before engaging in any kind of monitoring, employers should disseminate policies that put employees on notice that the employers’ devices, systems, and accounts belong solely to the employer and may be monitored on a periodic or ongoing basis.

Conclusion

While these steps are intended to help employers protect their legitimate business interests, they are not comprehensive and are not guaranteed to protect against every threat of disclosure and other forms of misconduct. When implemented correctly, however, they should substantially reduce overall risk. In addition, where litigation is necessary, an employer that has implemented the above steps will have ample evidence to show that it both identified its legitimate business interests to its employees and notified them of their legal obligations to protect such interests. This can dramatically improve an employer’s chances of prevailing in court.

[1] SeeWhat’s Yours is Mine: How Employees are Putting Your Intellectual Property at Risk,” White Paper by the Ponemon Institute and Symantec Corporation (2013), available at https://www.ciosummits.com/media/solution_spotlight/OnlineAssett_Symantec_WhatsYoursIsMine.pdf.

[2] For a comprehensive checklist of steps employers can take, see “A primer and checklist for protecting trade secrets and other legitimate business interests before, during, and after lockdown and stay-at-home orders,” available at https://www.faircompetitionlaw.com/2020/05/17/a-primer-and-checklist-for-protecting-trade-secrets-and-other-legitimate-business-interests-before-during-and-after-lockdown-and-stay-at-home-orders/.

[3] See, e.g., “13 Signs That Someone Is About to Quit, According to Research,” by Timothy M. Gardner and Peter W. Hom, Harvard Business Review (Oct. 20, 2016), available at https://hbr.org/2016/10/13-signs-that-someone-is-about-to-quit-according-to-research.

 

Russell Beck is a founding partner of Beck Reed Riden LLP. He has authored books on trade secrets and restrictive covenants, assisted the Obama Administration on a Call to Action on noncompetes and trade secrets, drafted much of the Massachusetts Noncompetition Agreement Act, and revised the Massachusetts Uniform Trade Secrets Act. Russell teaches Trade Secrets and Restrictive Covenants at the Boston University School of Law and is President Elect of the Boston Bar Foundation.

Hannah Joseph is senior counsel at Beck Reed Riden LLP and focuses her practice on trade secrets and restrictive covenants law. Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law.