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...