About the author: PJ Kee is an associate at the Jones Walker law firm in New Orleans. He and a few colleagues recently launched Trade Secret Insider, which chronicles legal insights on trade secrets, non-competes, computer fraud and confidential data theft. This article was originally posted on tradesecretsinsider.com.
This may come as a shock. But Donald Trump has unwittingly offered trade secret litigators a teachable moment. It arose in his recent squabble with fellow presidential hopeful Senator Lindsey Graham. After Trump mocked Senator John McCain for being a POW, Graham told CNN that Trump was “becoming a jackass” and later called Trump “the world’s biggest jackass” on “CBS This Morning.” Trump unsurprisingly escalated the bickering. During a campaign speech, Trump called Graham a “lightweight” and an “idiot”—and then disclosed Graham’s personal cell phone number, encouraging his supporters to “give it a shot.” After the phone was inundated with calls and texts, Graham responded by letting us know what he planned to do with the phone (my personal favorite is the Red Bull shake):
So what does this have to do with trade secret cases? Defendants may experience a Grahamesque reaction when they suspect that a trade secret case is brewing. That is, get rid of the phones—or computers, flash drives, email accounts, etc.—as soon as possible and before we’re sued. But litigators on both sides of a trade secret dispute must ensure that Graham’s instructional video is not followed. Especially since these devices and accounts often hold the central evidence for the plaintiffs and defense.
Counsel for trade secret plaintiffs need to act immediately. As soon as a client alerts you to potential trade secret concerns, you should notify the potential defendants and their counsel about not only your client’s underlying trade secret concerns but also the obligation to preserve their devices and accounts and the information stored on them. You don’t want defendants to claim that they discarded devices without realizing the need to preserve them. The notification letter should trigger their obligation to preserve evidence and will be exceedingly helpful if they don’t. A court considering a spoliation motion can rely on your notification letter to determine when the obligation to preserve evidence arose and whether the evidence was destroyed intentionally.
And this is exactly what you don’t want to face as defense counsel. A plaintiff’s successful spoliation motion will often lead to a victory on the underlying claim. So you don’t want your client accused of spoliation or to be faced with the challenge of trying to convince a judge or jury that the destruction of evidence was accidental, understandable, or not as bad as it seems. It’s thus imperative to instruct your clients as soon, as clearly, and as often as you can. They can’t take Senator Graham’s lead. Meat cleavers, blenders, golf clubs, lighter fluid, samurai swords, and baking ovens are off limits. The devices, accounts, and information stored on them must be preserved. If not, the likely consequence is that—unlike Senator Graham—your clients won’t have the last word—and may in fact be deprived of the right to defend themselves entirely.
The Donald has given us a chance to revisit how important it is to communicate early and often about preserving evidence in trade secret disputes. Just as he intended.