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

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 65 of 139
L.L.C., their roles with the company, and contact with clients”—“only relate to Plaintiff’s
claim for breach of fiduciary duty against Mr. Bell, not the myriad of other claims in this
litigation.” (Docket Entry No. 345 at 13–14). The defendants argue that there was no duty
to preserve these emails in November and December 2006 because they only planned to sue
Rimkus for a declaratory judgment that the noncompetition and nonsolicitation provisions
were unenforceable.
The defendants also argue that there is insufficient prejudice to Rimkus to warrant a
default judgment or adverse inference instruction because Rimkus has been able to obtain
some of the deleted emails from other sources and has sufficient evidence to argue its claims.
The defendants contend that any emails or documents they destroyed that could not be
obtained from other sources in discovery “would be merely cumulative of evidence already
produced.” (Id. at 15). The defendants assert that there is a “wealth” of evidence on the
formation of U.S. Forensic and the defendants’ preparations to form a competing business.
They point to several documents that were produced earlier in this litigation that “could be
deemed relevant to Plaintiff’s claim for breach of fiduciary duty and the issue of Defendants’
formation of U.S. Forensic.” (Id. at 16).
The defendants admit that sanctions in the amount of reasonable costs and fees
Rimkus incurred to obtain production of the April 2008 email Gary Bell sent himself
containing attachments with Rimkus client-contact information and the reports with Rimkus
language are appropriate. (Docket Entry No. 408 at 26). The defendants argue that other
sanctions are not warranted because the failure to produce earlier was not due to intentional
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