Suspicious Lack of Data on Blackberries Leads to Adverse Inference Sanction

When employees defect from one company to another and litigation is initiated, nothing good ever comes of it.  The case of Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) is just such a case.  The short answer here is that a group of employees left the plaintiff''s company, Southeastern Mechanical Services ("SMS") to join Thermal Engineering Construction Services, Inc. (“TEI”).   When some of the employees turned in their SMS laptops upon their departure, they were wiped (meaning a software program was used to erase data from the hard drives of the laptops.)  This raised suspicion and SMS initiated a lawsuit alleging theft of trade secrets and confidential information.  

During a preliminary injunction hearing, the court did not believe the explanation that some of the individual defendants wiped their laptops to protect personal information.  As a result the court issued a temporary restraining order ("TRO") preventing the group of employees from deleting their TEI issued blackberries and laptops.  The blackberries were turned in for forensic examination by plaintiff and defendants and found to have a suspicious absence of data.  The blackberries contained no phone, e-mail or text messages, even though individual defendants (former SMS employees) testified that they used their TEI issued blackberries (and a personal blackberry of one former employee) every day for e-mail, phone and texting since starting with TEI.

The court determined that between the two forensic experts, there were only four ways for the blackberries to appear to have been wiped.  Three required intentional acts of the users and one explanation was the accidental wiping by defendants' forensic expert.  The court dismissed this last scenario as not plausable.  Attributing motive and opportunity to the individual defendants the court determined that the defendants must have deleted the information from the blackberries in violation of the court's TRO.  The court also cited to the wiped SMS laptops as another reason not to believe any denial of wrondoing. As a result, the court awarded an adverse inference jury instruction as a sanction for the failure to preserve the data on defendants' blackberries.

The facts are a little more complicated then the short answer above, but the case contains a good discussion of spoliation law.  For a more detailed overview of the case and to obtain a copy of the case click here.