Telequest Int’I Corp. v. Dedicated Business Syst., Inc., 2009 WL 690996, No. 06-cv-5359,  (D.N.J., March 11, 2009) – In this case, the employer sued its former employee and his newly-formed business for violating a noncompete agreement and stealing confidential company information. The employee initially resisted producing his computers in discovery for forensic analysis. When he ultimately did, the employer determined he had deleted relevant information and run programs to “wipe” the hard drives clean.

The court declined to enter default judgment against the employee, but granted the employer’s request for an adverse inference jury instruction that the employee’s destruction of documents may be considered as evidence that he did so out of a well-founded fear that the contents would harm him. The court emphasized that a defendant is under an affirmative duty to preserve evidence it knows or reasonably should know will likely be requested when litigation is pending or probable. This duty arises, the court said, at the latest when litigation is filed.

Although this case involved destruction of evidence by an employee, it applies equally to employers and reiterates the importance of preserving evidence as soon as possible when litigation is reasonably foreseeable.

Note: This article was published in the April 2009 issue of the New Jersey eAuthority.

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