4-4 EARLY EVIDENCE GATHERING/FORENSIC ANALYSIS

• Jurisdiction: United States

4-4 Early Evidence Gathering/Forensic Analysis

Apart from any legal duties to preserve potential evidence, as a practical matter, the trade secret plaintiff should begin to assemble evidence as soon as a suspicion of misappropriation arises. Ensuring that evidence is preserved and gathered can be particularly helpful when, as discussed in greater detail below, the plaintiff intends to seek a temporary restraining order (TRO) or a preliminary/temporary injunction.²⁵ Specific facts indicating that a misappropriation occurred, based on thorough investigation and preservation of evidence, will give the plaintiff a much better chance at prevailing on a TRO or a request for preliminary injunctive relief.

One type of evidence that often comes up in these types of preliminary hearings (as well as throughout many trade secret cases beyond the initial stages) is forensic computer evidence taken from the defendant's computer. In cases involving employees leaving to work for a competitor, the plaintiff will often hire a consulting expert to conduct a forensic analysis of the ex-employee's computer or other devices to determine whether any trade secret information was taken. Temporary injunction requests often succeed where a forensic analyst examines the defendant's company computer upon resignation and establishes through expert testimony that the defendant had accessed and/or downloaded confidential company information prior to leaving.²⁶

A significant change in behavior by the departing employee can be a red flag as well. In Q'MaxAmerica, Inc. v. Screen Logix, LLC, the court emphasized such a behavioral change in affirming the temporary injunction order. While the defendant typically accessed less than one document per day in the typical course of his duties with his former employer, prior to negotiating with his new employer, he accessed anywhere from 39 to 109 documents in a single day once negotiations began.²⁷ The same technique has been applied where employees left a company to begin their own competing business.²⁸ In Expert Tool & Machine, Inc. v. Petras, the forensic expert analyzed the former employees' computers to find an email exchange that used a confidential company document (a "price estimator") for purposes of designing the employees' own competing bid.²⁹

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Notes:

^[25] See Tex. R. Civ. Proc. 680 (court can issue TRO without notice and a hearing if "immediate and irreparable injury, loss, or damage will result," so long as the TRO application is...