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Litigating Spoliation Claims in Trade Secret Cases

A 'How-To' Guide for Obtaining Remedies for Intentional, Bad Faith Conduct

In today’s Digital Era, where employee mobility is commonplace, businesses are more exposed than ever to trade secret theft by employees. As businesses move toward the complete digitization of information, lawyers involved in trade secret misappropriation matters cannot afford to be unfamiliar with the concepts of e-discovery and spoliation. Increasingly, the two collide, with spoliation issues arising in the context of trade secret litigation.

Indeed, trade secret misappropriation cases are fertile ground for the litigation of spoliation issues, simply because the type of defendant who is willing to intentionally steal proprietary information is often the type of individual who will take steps to attempt to conceal the misconduct. With “forensic solutions” easily accessible to anyone with a web browser and a credit card, many defendants believe that they can destroy electronic evidence without a trace. Of course, this is a misconception. Forensic experts are able to detect evidence of the deletion of emails and files, wiping or reformatting computers, and use of flash drives to copy files. A good forensic expert, coupled with a strategic presentation of facts, can establish bad-faith, intentional spoliation and accelerate a win for the trade secret owner.

There is no shortage of guidance on the duty to preserve electronic evidence and on how to avoid spoliation. But what should a trade secret plaintiff do when its adversary has engaged in spoliation? How can a company identify spoliation and use that misconduct offensively against a defendant to obtain a successful outcome in litigation? That is what we address here.

This article provides litigators and businesses with tips on how to detect and identify spoliation, how to establish spoliation before a judge or arbitrator, and how to use the various available remedies to achieve a positive result for your client in a trade secret lawsuit.

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