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 66 of 139 wrongdoing but to “ineptitude” and that Rimkus is not prejudiced because “the vast majority of information requested by Plaintiff, and previously thought to be lost or destroyed, has now been produced.” (Id. at 28). 2. The Duty to Preserve The record shows that no later than November 11, 2006, when the defendants were about to “preemptively” sue Rimkus, they had an obligation to preserve documents and information—including electronically stored information—relevant to these disputes. The disputes included whether Bell breached the fiduciary duty he owed Rimkus as an officer, whether Bell or Cammarata breached enforceable obligations under the noncompete and nonsolicitation provisions in the parties’ contracts, and whether Bell or Cammarata breached contractual or common-law duties not to take or use Rimkus’s confidential and proprietary information. Bell sought the advice of counsel before leaving Rimkus. The November 11, 2006 email from Bell to Cammarata, DeHarde, and Janowsky discussing the final steps of the plan to sue Rimkus in Louisiana to challenge the noncompete and nonsolicitation provisions shows that the defendants knew that they would be suing Rimkus within days. The duty to preserve electronically stored information and documents relevant to that suit and reasonably anticipated related litigation was triggered no later than November 11, 2006. The defendants’ argument that their preservation obligation was limited to documents or emails related to breach of fiduciary obligation claims against Bell is unpersuasive. Bell, Cammarata, and DeHarde sued Rimkus in Louisiana seeking a declaratory judgment that the 66
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 67 of 139 noncompetition and nonsolicitation clauses were unenforceable so that they could operate U.S. Forensic to compete with Rimkus. It was reasonable for Bell and Cammarata to anticipate that Rimkus would seek to enforce those contractual provisions as to all the U.S. Forensic employees who left Rimkus, as well as the contractual and common-law duty not to disclose Rimkus’s confidential and proprietary information. Emails and attachments and other documents relating to U.S. Forensic and its related company, to soliciting Rimkus clients or employees, and to obtaining or using Rimkus information were subject to a preservation obligation. Such records were relevant to the claims involved in the Louisiana state court action that Cammarata, Bell, and DeHarde filed and to the reasonably anticipated claims that Rimkus would file, and involved the key players in the parties’ litigation. Rule 37(e), which precludes sanctions if the loss of the information arises from the routine operation of the party’s computer system, operated in good faith, does not apply here. The evidence in the record shows that the defendants and other U.S. Forensic founders did not have emails deleted through the routine, good-faith operation of the U.S. Forensic computer system. DeHarde testified that he, Bell, Cammarata, and Janowsky decided on a “policy” of deleting emails more than two weeks old. Putting aside for the moment other evidence in the record inconsistent with this testimony, a policy put into place after a duty to preserve had arisen, that applies almost exclusively to emails subject to that duty to preserve, is not a routine, good-faith operation of a computer system. Moreover, the evidence shows that the founders of U.S. Forensic manually and selectively deleted emails, after the duty to preserve arose. The selective, manual deletions continued well after Rimkus 67
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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