The earliest trade secrets cases recognized that intentional memorization of trade secret information for the purpose of misappropriating that information should be redressable in a trade secrets action. However, courts did not distinguish between information that was intentionally memorized versus information that was inadvertently remembered. In the early days, trade secrets law was characterized by unfair competition approaches whereby liability would be found only if there was some improper act by the misappropriator. This approach was solidified in the Restatement (First) of Torts, which conditioned misappropriation liability upon a knowledge requirement. The knowledge requirement continued in the later statutory period, but courts applied it inconsistently and sometimes not at all. This Article develops a taxonomy of remembered information and uses the taxonomy in conjunction with cognitive science to suggest that misappropriation liability should not attach in many cases of remembered information because the employee’s state of mind would preclude a finding that the knowledge requirement was met.
