{¶ 2} Thus, the issue here concerns whether the use of a memorized client list can be the basis of a trade secret violation pursuant to Ohio’s Uniform Trade Secrets Act (“UTSA”), R.C. 1333.61 et seq. After review, we have concluded that the client information at issue in this case did not lose its status as a trade secret, or the protection of the UTSA, because it had been memorized by a former employee.
{¶ 3} AMA is an actuarial firm that designs and administers retirement plans and that employs several “pension analysts” who work with approximately 500 clients. A1 Minor Jr., who founded AMA in 1983 and serves as its president and sole shareholder, developed AMA’s clientele, for which the firm maintains a confidential list.
{¶ 4} In 1998, AMA hired Martin as a pension analyst but did not require him to sign either an employment contract or a noncompetition agreement. In 2002, while still employed by AMA, Martin organized his own company, Martin Consultants, L.L.C., with the purpose of providing the. same type of services as AMA. In 2003, he resigned from AMA and, without taking any documents containing confidential client information, successfully solicited 15 AMA clients with information from his memory.
{¶ 5} After learning of Martin’s competing business, AMA filed the instant action against him for monetary and injunctive relief, claiming that he had violated Ohio’s Trade Secrets Act by using confidential client information to solicit those clients. The trial court referred the trial to a magistrate, who determined that Martin had misappropriated AMA’s client list in violation of the UTSA. In addition, the magistrate specifically concluded that the fact that Martin had solicited AMA’s clients from memory did not prevent the finding of a trade secret violation. The magistrate further recommended finding against Martin for $25,973 in fees that AMA would have earned from its former clients and denying injunctive relief. Martin filed objections, but the court overruled them, adopted the magistrate’s findings and recommendations, and entered judgment in favor of AMA.
{¶ 7} In this court, Martin asserts that a client list memorized by a former employee cannot be the basis of a trade secret violation and that the appellate court’s decision in this case overly restricts his right to compete in business against AMA. He also argues that AMA should not have the right to control the use of his memory and that AMA had the opportunity to protect its confidential information by way of an employment contract, which it did not do.
{¶ 8} AMA counters that public policy in Ohio favors the protection of trade secrets, whether written or memorized; that the definition of a trade secret should focus on the nature of the information and the potential harm that its use would cause the former employer; and that no meaningful difference exists between a written and memorized client list.
{¶ 9} We note that Martin has also briefed a second proposition of law asserting that AMA’s client list does not satisfy the definition of a trade secret because it contained information that is available to the public via the Internet. However, because Martin never raised this issue in his memorandum in support of jurisdiction, we never agreed to consider it. Thus, we concern ourselves only with the proposition of law that we accepted for review: whether a memorized client list can be the basis of a trade secret violation in Ohio pursuant to the UTSA.
{¶ 10} Ohio’s protection of trade secrets arose at common law. In one of the earliest appellate decisions concerning trade secrets, Natl. Tube Co. v. E. Tube Co. (1902),
{¶ 11} Moreover, as the United States Supreme Court noted in its 1974 decision in Kewanee Oil Co. v. Bicron Corp., “Ohio has adopted the widely relied-upon definition of a trade secret found at Restatement of Torts § 757, comment b (1939).”
{¶ 12} In 1994, the General Assembly enacted the UTSA, R.C. 1333.61 through 1333.69, which defines a “trade secret” as follows:
{¶ 13} “[I]nformation, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:
{¶ 14} “(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
{¶ 15} “(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” R.C. 1333.61(D).
{¶ 16} Furthermore, in Plain Dealer,
{¶ 17} Neither R.C. 1333.61(D) nor any other provision of the UTSA suggests that for purposes of trade secret protection, the General Assembly intended to
(¶ 18} The legislature, when enacting R.C. 1333.61(D), could have excluded memorized information from the definition of trade secret or added a requirement that such information be reproduced in physical form in order to constitute a trade secret. But it did not, and we are not in a position to read such language into the statute. See, e.g., Portage Cty. Bd. of Commrs. v. Akron,
{¶ 19} In addition, more than 40 other states have adopted the Uniform Trade Secrets Act in substantially similar form, and the majority position is that memorized information can be the basis for a trade secret violation. See, e.g., Ed Nowogroski Ins., Inc. v. Rucker (1999),
{¶ 20} The majority position among our sister states is relevant with respect to the legislature’s intent, because as we recognized in State ex rel. Besser v. Ohio State Univ. (2000),
{¶21} Treatises on the subject of trade secrets also support the majority position that the determination of whether a client list is a protected trade secret does not depend on whether a former employee has memorized it. For example, in 2 Louis Altman, Callmann on Unfair Competition, Trademarks and Monopolies (5th Ed.2005) 14-192 through 14-195, Section 14.25, the text states, “As to customer lists, the older rule in some jurisdictions permits taking by memorization. In principle, however, the distinction between written and memorized information should not be encouraged. The form of the information and the manner in which it is obtained are unimportant; the nature of the relationship and the defendant’s conduct should be the determinative factors. The distinction places a premium upon good memory and a penalty upon forgetfulness, and it cannot be justified either from a logical or pragmatic point of view.” (Footnotes omitted.)
{¶ 22} Citing more recent cases, the Callmann treatise explains, “The modern trend is to discard the written-memorized distinction; and the Uniform Trade Secrets Act has abrogated the common law rule which permitted misappropriation of customer lists by memorization.” (Footnotes omitted.) Id. at 14-195. See also N. Atlantic Instruments, Inc. v. Haber (C.A.2, 1999),
{¶ 23} We recognize that the protection of trade secrets involves a balancing of public policies, and as stated in E.I. duPont de Nemours & Co. v. Am. Potash & Chem. Corp. (1964),
{¶ 24} Based on the foregoing, we conclude that the determination of whether a client list constitutes a trade secret pursuant to R.C. 1333.61(D) does not depend on whether it has been memorized by a former employee. Information that constitutes a trade secret pursuant to R.C. 1333.61(D) does not lose its character as a trade secret if it has been memorized. It is the information that is protected by the UTSA, regardless of the manner, mode, or form in which it is stored — whether on paper, in a computer, in one’s memory, or in any other medium.
{¶ 25} Every employee will of course have memories casually retained from the ordinary course of employment. The Uniform Trade Secrets Act does not apply to the use of memorized information that is not a trade secret pursuant to R.C. 1333.61(D).
{¶ 26} Moreover, we recognize that no conflict exists between the appellate court’s decision in this case and the decision of the Cuyahoga County Court of Appeals in Greenwald, because the latter case predated the legislature’s adoption of the UTSA.
{¶ 27} In this case, AMA’s client list constituted a trade secret pursuant to R.C. 1333.61(D), and the fact that Martin had memorized that client list before leaving AMA does not change its status as a trade secret or remove it from the protection of the UTSA. For these reasons, we affirm the judgment of the court of appeals.
Judgment accordingly.