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In Realpage Inc. v. Enter. Risk
Control, LLC, 2017 BL 102339 (E.D. Tex. 2017), the court
ordered Enterprise Risk Control, LLC ("Enterprise") to
produce forensic images of devices used by a former Realpage
employee to a forensic neutral in order to determine whether any
source code was recoverable pertaining to Realpage's
allegations of misappropriation.
Background
After leaving employment with Realpage in 2012, Tom Bean
("Bean") started his own software development company
named IDC. Bean and IDC were hired by former Realpage employee, and
active Enterprise employee, Lonnie Derden ("Derden") to
design a vendor compliance application that was "completely
different" than the one in place at Realpage. In July 2013,
Enterprise hired Bean as a full-time employee and it was at that
time that Bean transferred all of his source code for the vendor
compliance application from IDC's computers to Enterprise's
computers. According to Bean's affidavit, he deleted all
versions of his source code from IDC's computers after the
transfer.
Pursuant to this lawsuit, Enterprise made the vendor compliance
application source code from July 2013 to the present available to
Realpage for their analysis. During their review, Realpage found
comments in the source code referencing dates from 2012 and early
2013, which Realpage argued indicated that versions of the source
code from that point in time must exist. While the court rejected
this argument, they recognized that Realpage's complaints
surround code that existed on or before the date that Bean
transferred the source code to Enterprise. The court concluded that
"a tailored [forensic] examination is appropriate at this time
to determine whether the missing code is recoverable or to enable
effective cross-examination as to its destruction."
Id. at *2.
Practical Considerations
The court stated that the forensic inspection would be limited
in scope, but there are a number of obstacles and considerations
with the court's Order. Within only seven days of the Order
(March 30, 2017), Enterprise must identify all Enterprise or IDC
computers and storage devices that were used by Bean in July 2013,
have those devices imaged and validated, and have those images
provided to a presumably not-yet-hired forensic neutral. The Order
also required that the forensic neutral complete his
report by April 12, 2017, which would initially consist of
determining whether any of the allegedly deleted source code is
recoverable, and if not, "the forensic examiner may search
more to determine the details of deletions of the particular files
so that Plaintiffs may adequately cross-examine."
Id.
Finally, although Realpage's Reply in support of its motion
appears to contemplate that the forensic neutral would image the
devices in question, the Order requires that Enterprise should
create and produce the forensic images to the neutral. This process
could result in further complications or arguments regarding the
methods used to create the forensic images.
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