When Business and Personal ESI Meet
Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008) has a well known “story line” but is very interesting in two respects.
Kenneth Fuston was a former employee of Koosharem who left to join SpecPersonnel. The plaintiff alleged that Fuston took confidential information, used it to hire some 20 of the plaintiff’s employees, and started a business in direct competition with the plaintiff.
The court ordered that the Fuston produce to produce emails between himself and any current or past employee of either company from both his home and work computer. He produced 1,936 pages of email, however
Plaintiffs noted several problems with defendants’ original production. Notably, all of the emails produced reflected the date compiled rather than the date received or sent, several emails allegedly retrieved from Trevor Doyle did not have Doyle listed as a sender or recipient, and many emails were missing their attachments. These irregularities, plaintiffs argued, called the authenticity of the documents into question. Plaintiffs also argued that documents were modified even after notice of litigation and that defendants made no document retention efforts after the lawsuit was filed. Specifically in support of production of home computers, plaintiffs argued that defendants’ new hires were not immediately provided with a company email account and thus conducted work from home computers and personal email accounts. Also, according to the plaintiffs, former employees emailed confidential information to their homes before going to work for defendants.
The court granted the second motion to compel and required forensic inspection of, not only the defendant’s home and work computers, but also those of the employees who left Koosharem and went to SpecPersonnal.
I’m frequently asked for samples of various documents needed in e-discovery, for example, a litigation hold letter. In issuing his order in this case, Judge William M. Catoe included a detailed, 20-step protocol for conducting the forensic analysis. He includes a time line as well. It is excellent and I recommend it to anyone looking for a template for an expert examination of ESI devices.
Secondly, note that the home computers of the plaintiff’s ex-employees’ were subjected to forensic analysis. More and more I find myself recommending that you keep your personal and business communication and data strictly separated. I understand the convenience of sending a personal email from a work machine in the middle of a busy day (or sending a business email from a personal account at night), but as I see more cases in which inspection of personal, home computers is compelled, I’m beginning to think the risks are too high.
