Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court

Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2004 WL 2984815 (E.D.La. Dec. 9, 2004)

In this case, a company (NovelAire) filed a complaint against its former employees (Harrison and Bucklin) for breach of agreement and breach of fiduciary duties, intentional interference with a contract, and violations of Lousiana’s unfair trade practices act. The same day it filed its complaint, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled “Order for Expedited Discovery to Preserve Evidence.” The request was based, in part, on an email written by Bucklin that allegedly evidenced the employees’ intent to destroy discoverable evidence pertinent to NovelAire’s state court case. After reviewing the request, the judge ordered the sheriff to serve the discovery order on Harrison and Bucklin and remain on the premises until the order had been carried out.

The discovery order authorized NovelAire and an independent computer expert designated by NovelAire, through the sheriff, to preserve evidence by imaging computers located at a particular address, which was both the former employee’s new business entity’s registered domicile and Harrison’s and Bucklin’s residence In addition, the order specifically stated that the independent computer expert who examined the computer would not turn over any information to NovelAire until Harrison and Bucklin had the opportunity to object to the discoverability of the information.

The next day, a deputy, two employees of NovelAire’s counsel (“Jones Walker”), and the independent computer expert hired by NovelAire, arrived at the employees’ domicile and executed the discovery order.

Harrison and Bucklin filed suit in federal court, alleging that the state court’s expedited discovery order and its execution were invalid, that NovelAire, Jones Walker, and two employees of Jones Walker violated plaintiffs’ Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. s. 1983, and that the defendants were liable for trespass, invasion of privacy, and abuse of rights.

On defendant’s motion to dismiss for failure to state a claim, the federal court dismissed the federal claim, finding that the conclusory allegations of a “conspiracy” between the defendants and the deputy were insufficient to establish the requisite state action. However, the court denied the motion as to the remaining claims, finding that Harrison and Bucklin had alleged facts sufficient to state causes of action for trespass, invasion of privacy and abuse of rights.