Defensible Deletion after Information Theft is Discovered
February 23, 2015
Advances in technology make it easier for employees to take competitive information from their employers when they leave to join a competitor. If the competitor discovers its new employee has taken information, it can preemptively delete it from all computers and servers. This may prevent litigation. If it doesn’t, it demonstrates good faith and can be used as a defense.
However, the information must be deleted in a way that does not violate the default obligation to preserve evidence, in order to avoid the risk of sanctions for spoliation. These sanctions can be leveled if a party that could reasonably anticipate litigation destroys relevant evidence.
Defensible deletion is also a helpful strategy for settling litigation over information theft. The parties may agree that the misappropriated information will be purged from the new employer’s systems and draft an acceptable protocol. Sometimes both parties will participate in the drafting. Other times, the party that will be deleting the information drafts a protocol to govern compliance with the settlement, and then certifies it has followed the protocol. In either case, it is recommended to consult a forensic expert to advise on the technical process and achievable results.
For a variety of reasons, defensible deletion projects can fail, but when done properly they can help employers avoid or minimize liability. They can also assist parties in resolving protracted litigation over information theft. The authors outline methods and procedures for successful implementation of these projects.
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