Tag: TRO

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Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)
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Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D. Neb. June 24, 2010)
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Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 2010 WL 2764714 (N.D. Cal. July 13, 2010)
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Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)
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Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)
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Gucci Am., Inc., v. Gucci, 2009 WL 440463 (S.D.N.Y Feb. 20, 2009)
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Hoyle v. Dimond, 2009 WL 604899 (W.D.N.Y. Mar. 9, 2009)
8
Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009)
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Southeastern Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. July 24, 2009)
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Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D. Neb. June 24, 2010)

Key Insight: Where plaintiff presented evidence purportedly showing defendant?s intentional destruction of relevant evidence, court found an imminent threat of irreparable harm to plaintiff existed absent an order to prevent the destruction and that such an order was not likely to cause significant harm to third parties and thus granted plaintiff?s motion for a temporary restraining order preventing such destruction and requiring collection and preservation of relevant evidence, among other things

Nature of Case: Environmental litigation

Electronic Data Involved: ESI

Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 2010 WL 2764714 (N.D. Cal. July 13, 2010)

Key Insight: Upon plaintiff?s showing of a likelihood of success in its claims and a possibility of irreparable harm absent judicial intervention, the court granted plaintiff?s motion for a preliminary injunction precluding defendants from using, copying or divulging plaintiff?s confidential information and from destroying or erasing such information, among other things; upon the parties? agreement, the court also appointed a Special Master to preside over all proceedings regarding the preservation of plaintiff?s information in the possession of defendants, the forensic imaging of defendant?s computer systems and servers to determine the extent of plaintiff?s information in their possession, and defendant?s communications with any of plaintiff?s customers appearing in the alleged confidential information

Nature of Case: Misappropriation of Trade Secrets and related claims

Electronic Data Involved: ESI

Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)

Key Insight: Court rejected objections to the Magistrate Judge?s recommendation that plaintiff?s motion for a preliminary injunction be denied and, addressing plaintiff?s assertions that an evidentiary gap regarding defendant?s alleged misappropriation of information could be filled by adverse inference resulting from defendant?s failure to preserve instant messages, declined to impose such an inference where defendant mistakenly believe that the messages were automatically preserved and, upon learning otherwise, made changes to preserve going forward and thus plaintiffs were unable to show a culpable state of mind and where the alleged spoliation caused little harm in light of the availability of other evidence

Nature of Case: Breach of non-competition agreement

Electronic Data Involved: Instant messages

Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)

Key Insight: Court granted defendant?s motion to clarify the agreed preliminary injunction order where, following entry of the agreement, defendant determined that the broad language addressing preservation created a cost prohibitive obligation that was broader than necessary to protect the plaintiff and agreed to enter an order reflecting defendant?s proposed revision which was more specific regarding what must be preserved

Electronic Data Involved: ESI

Gucci Am., Inc., v. Gucci, 2009 WL 440463 (S.D.N.Y Feb. 20, 2009)

Key Insight: Court found that defendant violated temporary restraining order by failing to disclose certain relevant emails and other ESI discovered following forensic examination of defendant?s computer and rejected defendant?s assertions that the failure resulted from his lack of understanding of his discovery obligations, mistake of his counsel, and his own lack of computer savvy; Court ordered defendant to pay attorneys? fees and costs attributable to the additional discovery and motions practice undertaken as a result of non-disclosure

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, email

Hoyle v. Dimond, 2009 WL 604899 (W.D.N.Y. Mar. 9, 2009)

Key Insight: Where plaintiff did not consider contact information taken from defendants to be a ?record? and thus deleted the information from his computer and did not return it, court denied motion to hold plaintiff in contempt for violating preliminary injunction upon finding that plaintiff had substantially complied with the court?s order because deletion of the data satisfied the purpose of the injunction

Nature of Case: Fraud, negligent misrepresentation and unjust enrichment

Electronic Data Involved: ESI on plaintiff?s computer

Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009)

Key Insight: Where plaintiff alleged defendant violated the preliminary injunction by deleting files he was directed to preserve and return to plaintiff, including using wiping software to delete files hours before producing his computer for inspection, court denied plaintiff?s motion for contempt finding that ?without some other indication that [defendant] deliberately deleted files referenced in the preliminary injunction,? plaintiff failed to present the ?clear and convincing evidence? required to warrant a finding of contempt

Nature of Case: Federal trademark and state law breach of contract claims

Electronic Data Involved: ESI

Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Key Insight: Court granted plaintiff?s ex parte motion for a temporary restraining order enjoining defendants from ?deleting or destroying, erasing or otherwise making unavailable for further proceedings? any of plaintiff?s relevant business information obtained by defendants while employed by plaintiff and enjoining the deletion or alteration of email messages and other content in relevant email accounts, among other things

Nature of Case: Claims arising from former employees’ formation of competing business and suspected use of plaintiff’s confidential information

Electronic Data Involved: ESI, emails

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