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Cohasset Associates, Inc.

                                                                          NOTES
               Session 15: Spoliation of
                Electronic Evidence – A
             Hypothetical Case Based on an
                  Actual Dispute that Settled
                         Before Trial
                      Tuesday, May 8th, 2012, 10:45 a.m. to 12 p.m.


                 Richard Cowen, Esq. – Stahl Cowen Crowley Addis
                       Matthew Prewitt, Esq. – Schiff Hardin
                       Ron Hedges – Ronald J. Hedges, LLC




                             THE PARTIES
           ABC: No 1 in developing software programs and systems to
                 manage huge volumes of records. Headquarters in
                 Nowhere, USA

           XYZ: No. 3 in the industry. Aggressive, fast growing.
                 Headquarters in Anywhere USA
                                  Anywhere,

           ABC and XYZ are direct, head-to-head competitors in
               all U.S. Markets

           In this industry timing is crucial



                                                                      2




                            Plaintiff’s
                            Argument
                            A


                                                                      3




2012 Managing Electronic Records Conference                                       15.1
Cohasset Associates, Inc.

                                                                     NOTES
            Without Any Prior Notice, Two Key ABC
            Regional V.P.’s of Sales Quit to Join XYZ

                Joe Brown was ABC’s top grossing
                 salesman in the entire U.S. market

                Sam Smith was the No. 3 grossing
                 salesman, a rising star in charge of the fast
                 growing West Coast Region

                Both Brown and Smith had signed
                 Confidentiality Agreements with ABC

                                                            4




            Brown and Smith Turn In Their
                    ABC Laptops
           But not before they scrubbed them using “C Cleaner”
           They keep ten or more thumb drives
           ABC’s in-house I.T. staff finds “C Cleaner” has pretty
            much done its job
           ABC’s counsel sends out Preservation Notices
           Two weeks later ABC files suit, seeking a T.R.O.
            (Temporary Restraining Order) against Smith, Brown
            and XYZ
           T.R.O. is entered by the Court in the State of
            Anywhere
           Smith, Brown and XYZ are all served with copies of
            the T.R.O.

                                                            5




            But What About the Thumb Drives?
                Brown and Smith admit ABC documents
                 had been downloaded
                They had the thumb drives with them at a
                 meeting at XYZ’s main offices in
                 Anywhere, USA
                 A    h
                At least one was opened and information
                 shared with XYZ
                After the meeting at XYZ headquarters
                 they threw them in the garbage

                                                            6




2012 Managing Electronic Records Conference                                  15.2
Cohasset Associates, Inc.

                                                                  NOTES
          Defendants Attempt to Justify
             Destruction of Evidence
              Only intended to erase porn, cookies,
               personal emails, critical comments
               about ABC executives
              No special effort to download before
               they left
              Threw away the thumb drives so ABC
               could not claim they had anything
              Nothing confidential anyway
                                                        7




         Screen Shot of C Cleaner Proves
                 They Are Lying




                                                        8




          Throwing Away the Thumb Drives

              No credibility whatsoever
              They knew ABC wanted to inspect the thumb drives
                    Preservation Hold Letter
                    Complaint
                    T.R.O.
                    Confidentiality Agreement




                                                        9




2012 Managing Electronic Records Conference                               15.3
Cohasset Associates, Inc.

                                                                 NOTES
          Access to Confidential Information
              Customer Lists: prospects
              ABC Budgets
              Sales Budgets
              Strategic Plans
              Discount Policy
              Price Quotes
              All Password Protected

                                                           10




                                 Damages
                  ABC did not lose any customers or prospects
                  This is not “No harm, no foul”
                  Violated Rules of Court
                  Violated Case Law
                  Caused ABC Substantial Damages
                        Experts’ Fees     ($75,000.00)
                        Attorneys’ Fees   ($50,000.00)
                        ABC Employees Time


                                                           11




                   Relief Sought By ABC
              Default Judgment
              An Adverse Inference
              Damages




                                                           12




2012 Managing Electronic Records Conference                              15.4
Cohasset Associates, Inc.

                                                                     NOTES

                       Defendants’
                        Argument



                                                           13




         ABC Has Suffered No Prejudicial
               Loss of Evidence
         ABC had ample opportunity to conduct
          discovery.
         Any evidence that Smith or Brown used
          ABC s
          ABC’s data would have existed on other
          sources.
         After full discovery, there is no evidence
          that Smith or Brown ever used ABC’s data
          after resigning.

                                                           14




              ABC Has No Factual or Legal
                 Basis to Recover Fees
           Running “C Cleaner” did not violate any court rules or
            order.
                - A standard application installed by ABC.
                - Smith and Brown ran only once before any party
                  anticipated litigation.
           Loss of th fl h d i
            L       f the flash drives i
                                       imposed no additional
                                             d     dditi   l
            expense on ABC.
                - Smith and Brown admit that the flash drives
                  contained ABC files.
                - ABC conducted the same forensic examination
                  they would have conducted anyway.
           XYZ acted properly to comply with its discovery
            obligations.
                                                           15




2012 Managing Electronic Records Conference                                  15.5

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M12S15 - CASE STUDY: Spoliation - The Actual Case As It Was To Be Argued in Court - Until It Settled Just Before Trial

  • 1. Cohasset Associates, Inc. NOTES Session 15: Spoliation of Electronic Evidence – A Hypothetical Case Based on an Actual Dispute that Settled Before Trial Tuesday, May 8th, 2012, 10:45 a.m. to 12 p.m. Richard Cowen, Esq. – Stahl Cowen Crowley Addis Matthew Prewitt, Esq. – Schiff Hardin Ron Hedges – Ronald J. Hedges, LLC THE PARTIES  ABC: No 1 in developing software programs and systems to manage huge volumes of records. Headquarters in Nowhere, USA  XYZ: No. 3 in the industry. Aggressive, fast growing. Headquarters in Anywhere USA Anywhere,  ABC and XYZ are direct, head-to-head competitors in all U.S. Markets  In this industry timing is crucial 2 Plaintiff’s Argument A 3 2012 Managing Electronic Records Conference 15.1
  • 2. Cohasset Associates, Inc. NOTES Without Any Prior Notice, Two Key ABC Regional V.P.’s of Sales Quit to Join XYZ  Joe Brown was ABC’s top grossing salesman in the entire U.S. market  Sam Smith was the No. 3 grossing salesman, a rising star in charge of the fast growing West Coast Region  Both Brown and Smith had signed Confidentiality Agreements with ABC 4 Brown and Smith Turn In Their ABC Laptops  But not before they scrubbed them using “C Cleaner”  They keep ten or more thumb drives  ABC’s in-house I.T. staff finds “C Cleaner” has pretty much done its job  ABC’s counsel sends out Preservation Notices  Two weeks later ABC files suit, seeking a T.R.O. (Temporary Restraining Order) against Smith, Brown and XYZ  T.R.O. is entered by the Court in the State of Anywhere  Smith, Brown and XYZ are all served with copies of the T.R.O. 5 But What About the Thumb Drives?  Brown and Smith admit ABC documents had been downloaded  They had the thumb drives with them at a meeting at XYZ’s main offices in Anywhere, USA A h  At least one was opened and information shared with XYZ  After the meeting at XYZ headquarters they threw them in the garbage 6 2012 Managing Electronic Records Conference 15.2
  • 3. Cohasset Associates, Inc. NOTES Defendants Attempt to Justify Destruction of Evidence  Only intended to erase porn, cookies, personal emails, critical comments about ABC executives  No special effort to download before they left  Threw away the thumb drives so ABC could not claim they had anything  Nothing confidential anyway 7 Screen Shot of C Cleaner Proves They Are Lying 8 Throwing Away the Thumb Drives  No credibility whatsoever  They knew ABC wanted to inspect the thumb drives  Preservation Hold Letter  Complaint  T.R.O.  Confidentiality Agreement 9 2012 Managing Electronic Records Conference 15.3
  • 4. Cohasset Associates, Inc. NOTES Access to Confidential Information  Customer Lists: prospects  ABC Budgets  Sales Budgets  Strategic Plans  Discount Policy  Price Quotes  All Password Protected 10 Damages  ABC did not lose any customers or prospects  This is not “No harm, no foul”  Violated Rules of Court  Violated Case Law  Caused ABC Substantial Damages  Experts’ Fees ($75,000.00)  Attorneys’ Fees ($50,000.00)  ABC Employees Time 11 Relief Sought By ABC  Default Judgment  An Adverse Inference  Damages 12 2012 Managing Electronic Records Conference 15.4
  • 5. Cohasset Associates, Inc. NOTES Defendants’ Argument 13 ABC Has Suffered No Prejudicial Loss of Evidence  ABC had ample opportunity to conduct discovery.  Any evidence that Smith or Brown used ABC s ABC’s data would have existed on other sources.  After full discovery, there is no evidence that Smith or Brown ever used ABC’s data after resigning. 14 ABC Has No Factual or Legal Basis to Recover Fees  Running “C Cleaner” did not violate any court rules or order. - A standard application installed by ABC. - Smith and Brown ran only once before any party anticipated litigation.  Loss of th fl h d i L f the flash drives i imposed no additional d dditi l expense on ABC. - Smith and Brown admit that the flash drives contained ABC files. - ABC conducted the same forensic examination they would have conducted anyway.  XYZ acted properly to comply with its discovery obligations. 15 2012 Managing Electronic Records Conference 15.5