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

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 70 of 139
The defendants’ proffered reasons and explanations for deleting or destroying the
emails and attachments are inconsistent and lack record support. Bell testified that he deleted
emails for “space concerns,” Janowsky testified that he deleted emails on a weekly basis
because he got a lot of emails and they “fill up [his] box,” and DeHarde testified in his first
deposition that he deleted emails on an ad hoc basis because he was concerned about storage
capacity in his in-box. The defendants also asserted that they deleted emails about
preparations to form U.S. Forensic for fear of retaliation by Rimkus if they ended up staying
on at Rimkus. Allen Bostick, the IT consultant, testified that lack of space on U.S. Forensic’s
server and external hard drives did not become an issue until late 2007, well after this
litigation began. The fact that DeHarde did not reveal the “policy” of deleting all emails
more than two weeks old until after Rimkus was able to subpoena DeHarde’s Yahoo!
account is another reason for questioning the truthfulness of this explanation. Fear of
retaliation by Rimkus might explain the deletions that occurred before the defendants
resigned, but not after.
Some of the emails the defendants deleted were obtained from a Rule 45 subpoena
issued to one of the internet service providers, Homestead. These emails show the
defendants making preparations to form U.S. Forensic in September, October, and November
2006, and soliciting clients with whom they worked while at Rimkus in late November and
early December 2006. Other emails, obtained not from the defendants but through forensic
analysis of the laptop Bell used at Rimkus, show that Bell downloaded and transmitted
relevant. Id.
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