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Once a lawsuit over trade secrets or a noncompete begins,
"discovery" is usually the next step in the
case. This is the phase of a lawsuit where each
party asks for documents and conducts depositions to obtain
relevant information from the other side. As any
employment litigator can tell you, discovery usually involves
tricky issues regarding what information is relevant to the
lawsuit (and thus should be disclosed) and what is the personal
information of an employee or other person that has little to do
with the case.
To help employers, employees, and lawyers understand this
problem as it affects personal devices (e.g., iPhones, home
computers, etc.), David Garrett and Ronald J. Hedges have written an excellent article on
the examination of these devices in discovery. They
write that courts will sometimes permit experts retained by
one party to examine a forensic image of the personal device of
another party to determine what is relevant and should be disclosed
from what is personal, with both parties negotiating a
protocol to govern the examination. A court will usually
permit an examination if (1) relevant documents will likely only be
found on that device; or (2) the other party cannot be trusted for
some reason to produce relevant documents in the normal course of
discovery. In fact, "[t]he most common scenario
resulting in compelled forensic imaging appears to involve alleged
employee theft of trade secrets." A party can establish
prong (1) when a deposition reveals that a litigant has used
personal devices to create or edit documents, copies of
which cannot be found elsewhere. And prong (2) can
be satisfied when one side has destroyed relevant
documents or that party's first discovery response is
inadequate.
But how can a party avoid having his or her personal device
examined in the first place? As I've already
written, sometimes an employer will require employees to return
personal devices under certain circumstances if the
employer supports the device and it is used
for work. But if there is "strict segregation
of content"--that is, the employee has a device for work
and a seperate device for personal use--then the device
used for personal matters will likely not be
inspected. An employee who uses the same device for work
and personal matters can even use a separate drive for work or
set-up a separate login account. This might at least
limit any inspection to the work-related drive or
account. Another way of protecting personal information is to
ensure that all work-related information on a personal device is
backed up on a work device. This way, any relevant
information that could be obtained from a personal device
would also be obtained from a work device, so an examination
of the work device alone would be sufficient to get all
relevant information.
To view Foley Hoag's Massachusetts Noncompete Law
Blog please click
here
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guide to the subject matter. Specialist advice should be sought
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