Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 32 of 139 correct the pleading and get it in — then I call Markham. 23 Damn the torpedoes — full speed ahead!” (Id.). Rimkus argues that the defendants’ plan to file a preemptive lawsuit is evidence of a bad-faith attempt to prevent Rimkus from obtaining relief in Texas under Texas law. The presence of the plan is important to the duty to preserve relevant records. Bell responds that none of these actions breached his fiduciary duty to Rimkus. Bell contends that even a fiduciary relationship between an officer and the corporation he serves does not preclude the officer from preparing for a future competing business venture. Rimkus acknowledges that general preparations for future competition do not breach fiduciary duty but argues that Bell’s preparatory actions, combined with his misappropriation of trade secrets, solicitation of Rimkus’s customers, and luring away Rimkus’s employees—all while still employed by Rimkus—breached the fiduciary duty he owed as a Rimkus corporate officer. Rimkus alleges that both Bell and Cammarata misappropriated client lists, pricing information, and other confidential Rimkus business information to which they had access while working at Rimkus and that they used this information to solicit Rimkus clients for U.S. Forensic. The record shows that Bell and Cammarata emailed some Rimkus clients in November and December 2006. Some of these emails refer to prior work done for the clients while Bell and Cammarata worked for Rimkus. All these emails offer U.S. Forensic as an alternative to Rimkus. It appears that the emails sent to Rimkus clients soliciting business for U.S. Forensic were first produced by an internet service provider pursuant to a third-party 23 This is presumably a reference to Gary W. Markham, Rimkus’s former Chief Operating Officer. 32
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 33 of 139 subpoena. The defendants either did not produce such emails or delayed doing so until late in the discovery. The parties vigorously dispute how Bell and Cammarata obtained the contact information necessary to send these solicitation emails to Rimkus clients. Bell and Cammarata assert that they did not misappropriate confidential client or other information from Rimkus. Cammarata testified at a hearing that he did not download or print any Rimkus client list and did not take any written client list with him when he left. Cammarata submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus client lists or client-contact information and that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.” (Docket Entry No. 309, Ex. Y, Affidavit of Nick Cammarata 11–12). Bell also submitted an affidavit stating that when he resigned from Rimkus, he did not take any electronic or paper copies of Rimkus pricing information, investigative methods, report formats, operations manual, business plan, client lists, or client-contact information. (Id., Ex. V, Affidavit of Gary Bell 39–49). Bell stated that he has “never used any Rimkus client lists or client contact information in [his] work for U.S. Forensic.” (Id. 40). Bell also stated that he did not use his memory of Rimkus client-contact information to solicit business for U.S. Forensic. (Id. 41). Bell stated in his affidavit that he has used only publicly available information, primarily from the Casualty Adjuster’s Guides and the internet, to identify people to contact to solicit potential clients for U.S. Forensic. (Id.). The Casualty Adjuster’s Guide is a compilation of the names, addresses, phone 33
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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