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 74 of 139 external disk drives and later order to produce the emails in native format. The marketing emails from U.S. Forensic that Rimkus has recovered from third-party internet service providers show that at least during November and December 2006, Bell and Cammarata were soliciting Rimkus clients for U.S. Forensic. Some of the post-December 2006 emails that Rimkus has recovered from third parties are similar to the Homestead emails and show Bell and Cammarata soliciting business from Rimkus clients. Similar marketing emails sent or received after December 2006 were deleted by the defendants, but the extent of the missing emails remains unknown. DeHarde testified that the founding members of U.S. Forensic deleted emails that were more than two weeks old beginning in the fall of 2006. Bell testified in his deposition that he deleted all U.S. Forensic marketingrelated emails. The record supports an inference that emails soliciting Rimkus clients were deleted by the defendants and that some of these emails will never be recovered. Some deleted emails, later discussed in detail, show that Bell was contacting Rimkus clients whose information was not listed in the 2006 Casualty Adjuster’s Guide and that Bell did not have the Guide before December 2006. Even if this contact information was available on the internet in 2008, the record does not show that it was available in 2006. The emails to Rimkus clients whose contact information may not have been available in the Casualty Adjuster’s Guide or on the internet is relevant to whether Bell obtained the contact information from Rimkus. The emails that have been recovered by Rimkus, through great effort and expense, include some that support Rimkus’s claims, contradict testimony the defendants gave, and 74
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 75 of 139 are unfavorable to the defendants. Rimkus has shown that it has been prejudiced by the inability to obtain the deleted emails for use in the litigation. To level the evidentiary playing field and to sanction the defendants’ bad-faith conduct, Rimkus is entitled to a form of adverse inference instruction with respect to deleted emails. At the same time, it is important that Rimkus has extensive evidence to use in this case. And some of the emails that the defendants deleted and that were later recovered are consistent with their positions in this lawsuit and helpful to their defense. For example, the Homestead production revealed emails Bell sent to Rimkus clients soliciting business for U.S. Forensic stating that Bell intended to comply with his contractual obligations not to compete with Rimkus. In a November 15, 2006 email to Don Livengood at Fidelity, Bell stated that he would like to meet with Livengood to “go over the insurance coverages, the non compete agreement for Orleans Parish and [the] capacity to do jobs out of state.” (Docket Entry No. 394, Ex. F). Bell emailed Cary Soileau at Allstate on December 4, 2006 asking for the contact information for two other Allstate employees because he “was contractually obligated to leave all client info behind at Rimkus.” (Id.). In an email to Tim Krueger of Safeco Insurance on December 11, 2006, Bell stated that he was looking for the name of a local claims person, but Bell stated, “[p]lease keep in mind that due to contractual obligations we would not be able to accept any assignments in New Orleans until October 2007.” (Id.). Given this record, it is appropriate to allow the jury to hear the evidence about the deletion of emails and attachments and about discovery responses that concealed and delayed 75
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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