Rosenthal rules on Rimkus.

• Position: E-DISCOVERY

[ILLUSTRATION OMITTED]

Legal experts have called U. S. District Court Judge Lee H. Rosenthal s decision in Rimkus Consulting Group Inc. v. Cammarata (S.D.Tex. Feb. 19, 2010) one of the most important e-discovery decisions of the year, equally or perhaps even more significant than U. S. District Court Judge Shira Scheindlin's recent ruling in Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al (S.D.N.Y. Jan 15, 2010).

In Rimkus, a group of employees left to start a competing business and sued its former employer, Rimkus Consulting, to release its members from their non-compete agreements. In a countersuit, Rimkus accused the former employees of violating those agreements and stealing trade secrets and proprietary data for use in their new business.

The defendants in Rimkus had previously been plaintiffs in a "preemptive" action they brought against Rimkus in another jurisdiction. Rosenthal's U.S. District Court for the Southern District of Texas determined that the duty to preserve records arose when the defendants decided to sue Rimkus, no later than November 11, 2006. Instead of preserving electronically stored information (ESI) at that point, however, the defendants continued to routinely destroy documents, court records show. The defendants said they had to delete e-mails on a regular basis due to storage space limitations, but Rosenthal flatly rejected that argument.

Rosenthal found that at least some of the deleted evidence would have been relevant and favorable to Rimkus's case. Therefore, Rosenthal found that the e-mail deletion on the employees'...