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

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
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