Polygraph in Trade Secret Litigation: Overcoming Misconceptions and Paving the Way for Admissibility

Authors

• Elisabeth A. Wilson, Southern Methodist University, Dedman School of Law

Abstract

Ponder for a moment what you know about polygraph. Polygraph is sometimes referred to as a "lie detector" test. You may have seen a polygraph exam on television or a movie, but most people have a very limited understanding of what a polygraph examination really is. In fact, most depictions of polygraph seen in popular culture are overwhelmingly misleading and inaccurate. Likewise, the legal community's understanding of polygraph and how it can be utilized is scant, at best.

Courts have been divided for years over what role polygraph should play in litigation and have struggled with questions of admissibility. Confusion over whether a polygraph is admissible in court and whether employers are allowed to polygraph their employees often discourages the use of this science. However, polygraph can be a very useful investigative tool for attorneys involved in a variety of practice. This article focuses on the use of polygraph in one particular area that can benefit greatly from the use of this technology-trade secret litigation.

Trade secret litigation involves a theft or misappropriation of a company's confidential trade secret. An employer may suspect a current or former employee of theft, but evidence may be thin. A polygraph examination may uncover the true culprit and help the company take action against him. Conversely, a wrongly suspected employee may be able to demonstrate his innocence with a polygraph examination. It cannot be denied that "the truth is a mighty weapon to have on your side when you practice law." That being so, attorneys should explore the possibilities of using polygraph technology in their practice. Those who do will soon "uncover new and exciting opportunities to better serve their clients."

This article will explain polygraph, its background and present treatment in the courts, while advocating for the use of polygraph in instances of trade secret misappropriation. The basis for the use of polygraph in this fashion will be illustrated by a discussion of the Employee Polygraph Protection Act and an overview of trade secret laws. The article ends with a "practitioner's guide" to getting polygraph evidence admitted in court to bolster the evidence of theft or the innocence of a suspect. Employers and attorneys should strongly consider utilizing polygraph as a means of investigating theft of trade secrets and as evidence in the resulting litigation.

Recommended Citation

Elisabeth A. Wilson, Polygraph in Trade Secret Litigation: Overcoming Misconceptions and Paving the Way for Admissibility, 10 Computer L. Rev. & Tech. J. 357 (2006)