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We live in a digital world. Businesses, and those who misappropriate business secrets, rely on digital files and communications. In a trade secret dispute, digital “footprints” can reveal wrongdoing or confirm a defendant’s claims of independent development—but only when the electronic evidence is available. When digital evidence has been destroyed, the consequences can be devastating, both to the parties and to any court case. Recent cases in court and the ITC finding spoliation have led to adverse inferences, substantial monetary sanctions and even the striking of the spoliating party’s claims or defenses. If undiscovered, spoliation of ESI—by either party—can deprive trade secret owners of vital evidence of misappropriation and severely handicap efforts to seek redress and to limit the harms resulting from the theft of competitively valuable information. On the other hand, early discovery of spoliation activity and the gathering of critical forensic evidence can help a trade secret owner determine whether it has a case and suggest ways to recover information and help a trade secret defendant mount an untainted defense. Those involved in trade secret cases on either side must be alert to the possibility of spoliation issues arising in their cases, and should be able to recognize, investigate and litigate spoliation claims.
Experts will discuss:
- What is spoliation, including determining when the obligation for both parties to preserve evidence arises (10 minutes)
- Forensic tools for recognizing, investigating and proving ESI spoliation (12 minutes)
- Tips for litigating spoliation claims including discovery, use of experts, and evidentiary hearings (12 minutes)
- Piercing privilege -- the applicability of the crime-fraud exception to the attorney client privilege in litigation over spoliation (6 minutes)
- Available sanctions for spoliation and the evidentiary burdens associated with different potential sanctions (10 minutes)
- Tips for defending against spoliation claims and allegations (10 minutes)
Any lawyer who handles litigation, and especially trade secrets litigation, and any organization that has ever sent or received a demand letter relating to trade secrets issues would benefit from this presentation.
Victoria A. Cundiff: Partner, Paul Hastings LLP
Dana J. Finberg: Partner, Arent Fox LLP
J. Christopher Racich: President, Vestigant, LLC