TRO – Page 4 – Electronic Discovery Law

Maxpower Corp. v. Abraham, 2008 WL 1925138 (W.D. Wis. Apr. 29, 2008)

Dec 01 2008

Key Insight: Court denied plaintiffs? motions for preliminary injunction and for sanctions, where evidence that defendants had improperly accessed plaintiffs? computers was weak, evidence from forensic inspection of defendants? laptops was ambiguous, and ?most damning? piece of evidence was one defendant?s use of a drive cleaner on laptop after being served with summons and before laptop could be examined; court found that defendant’s proffered explanation for using the drive cleaner was not ?particularly implausible? and observed that plaintiffs could renew sanctions request if evidence later supported it

Nature of Case: Company asserted various claims against former employees, including misappropriation of trade secrets, intentional interference with prospective business opportunity, breach of loyalty and violation of the Computer Fraud and Abuse Act

Electronic Data Involved: Employer-provided laptops; other ESI

Dynamic Sports Nutrition, Inc. v. Roberts, 2008 WL 2775007 (S.D. Tex. July 14, 2008)

Dec 01 2008

Key Insight: Finding substantial likelihood that plaintiff would prevail on its claims, that plaintiff was suffering ?immediate, irreparable, imminent harm? for which there was no adequate remedy at law, that defendants had posted confidential information about plaintiff?s products on publicly accessible blogs and websites, that individual defendant had misappropriated laptop belonging to plaintiff after his termination from plaintiff and had failed to comply with aspects of the court’s Temporary Restraining Order, court entered preliminary injunction forbidding defendants from, among other things, deleting relevant ESI and requiring defendants to return laptop to plaintiff?s counsel and to preserve all evidence of any disclosure or dissemination of plaintiff?s confidential information

Nature of Case: Misappropriation of trade secrets, breach of fiduciary duty, conversion and and violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop computer and confidential business information

Remedy Intelligent Staffing, Inc. v. Metro. Employment Corp. of Am., 2008 WL 5156609 (D. Mass. Dec. 5, 2008)

Dec 01 2008

Key Insight: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff?s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, hard drives

Martone v. Burgess, 2008 WL 5120047 (N.D. Cal. Dec. 3, 2008)

Dec 01 2008

Key Insight: Where defendants failed to demonstrate prejudice if required to preserve information, failed to adequately establish the inaccessibility of the information sought, and failed to demonstrate the absence of ?questions serious enough to require litigation,? court granted plaintiffs? motion for preliminary injunction and preservation order requiring defendants to preserve information useful for identifying persons accessing plaintiffs? intellectual property through defendants? website

Electronic Data Involved: Information regarding visitors to a particular website

Agassi Enters., Inc. v. Target Corp., 2007 WL 4441195 (D. Nev. Dec. 11, 2007)

Dec 01 2007

Key Insight: Granting preliminary injunction, court further ordered defendant to “preserve all documents and other evidence (including, but not limited to, electronic documents such as email relating to its use of the AGASSI name . . .” and, within 30 days of the order, to file and serve a report detailing the manner and form in which Target complied with the preliminary injunction

Nature of Case: Trademark infringement

Electronic Data Involved: Electronic documents, email

Potter v. Havlicek, 2007 WL 539534 (S.D. Ohio Feb. 14, 2007)

Dec 01 2007

Key Insight: Although court denied motion for preliminary injunction forbidding defendant from using, disclosing or destroying emails and other ESI described by defendant as evidence he would present if tangentially related divorce case went to trial, court ordered defendant to produce subject emails and other ESI within 10 days

Nature of Case: Alleged violations of Electronic Communications Privacy Act and Stored Communications Act, invasion of privacy and intentional infliction of emotional distress

Electronic Data Involved: Emails and other ESI described by defendant in affidavit in tangentially related divorce case

Hudson Global Res. Holdings, Inc. v. Hill, 2007 WL 1545678 (W.D. Pa. May 25, 2007)

Dec 01 2007

Key Insight: Granting in part and denying in part plaintiff’s motion for TRO/preliminary injunction, court also ordered counsel to confer and suggest within ten days an agreeable method by which plaintiff, through its computer forensics expert or otherwise, may access and permanently delete or retrieve its information from defendant’s portable external hard drive and personal computer which were in court’s custody

Nature of Case: Plaintiff alleged claims of fraud, breach of fiduciary duty, misappropriation of trade secrets and unfair competition against former employee

Electronic Data Involved: Business data; laptop and portable hard drive

Charles Schwab & Co., Inc. v. Karpiak, 2007 WL 136743 (E.D. Pa. Jan. 12, 2007)

Dec 01 2007

Key Insight: Court adopted magistrate’s recommendation and issued preliminary injunction ordering defendants to return Schwab’s client and business information and to turn over to their counsel any information in electronic form (including but not limited to personal computers, lap top computers, Blackberries, Treos, Palm Pilots, mobile telephones and any other device in, or on, which data can be electronically stored), so that defense counsel could preserve the integrity of such devices and data and immediately make such devices and data available for inspection and duplication by plaintiff’s counsel and/or computer forensic consultants

Nature of Case: Breach of employment agreement

Electronic Data Involved: Trade secret information in electronic form

Sharma v. Vinmar Int’l, Ltd., 2007 WL 177691 (Tex. App. Jan. 25, 2007) (Not yet released for publication)

Dec 01 2007

Key Insight: Appellate court affirmed trial court’s order granting temporary injunction protecting Vinmar’s trade secrets; evidence at hearing included testimony of neutral forensic computer analyst jointly hired by the parties pursuant to court order, who examined former employees? computers and located some 321,000 “hits” using keyword search “Vinmar,” which expert said translated into thousands of Vinmar documents on those computers, and found indications of possible spoliation

Nature of Case: Chemical trading company sued former employees to enforce confidentiality and non-compete agreements

Electronic Data Involved: Proprietary information, spreadsheets

Kemper Mortgage, Inc. v. Russell, 2006 WL 4968120 (S.D. Ohio May 4, 2006)

Dec 01 2006

Key Insight: Where plaintiff presented convincing evidence at preliminary injunction hearing of defendant’s intentional spoliation of evidence, including his installation of file ?shredder? program on laptop computer the day before litigation was filed and under threat of its commencement, court allowed inference that that considerably more evidence of misconduct would have been found without the spoliation and granted preliminary injunction barring defendant from, among other things, destroying or deleting relevant ESI

Nature of Case: Breach of employment agreement

Electronic Data Involved: Laptop computer

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