E-discovery is the new trend in litigation; it is here to stay. Every lawsuit involves discovery, where lawyers get to ask questions and obtain documents that are relevant or might be relevant to the claims in the case. Now, because many documents exist in electronic form on computer hard drives, electronic files are also subjects for discovery. Parties are required to conduct searches of their computers for information, and in some cases, a party may be required to produce their hard drive so the opposing party can conduct its own search. And these searches can turn up deleted information.
In a case involving a non-compete, there may also be an issue whether the former employee took trade secrets or company information with him. There may also be an issue whether the employee began to compete before he left his job. Emails soliciting an employer’s clients sent before the employee quit or was fired can lead to liability for damages or an employee can be required to repay salary paid to him while engaging in disloyal behavior. Also, beware that copying employer files can be detected, and I have had more than a couple of cases where the employee copies a client list, presentations, and other files off his laptop and onto his personal computer. This can present a big problem.
And I have had a case where my clients were required to produce their personal computers for inspection by an information technology expert. A mirror imagine of the hard drive was created, and an expert, subject to negotiating procedures and limits, searched the contents for certain tell-tale words that would indicate relevance. Embarrassing and damaging information that made my clients look dishonest and unethical was uncovered. (Ouch.) Even though we were successful invalidating the non-compete, the evidence showed that my clients breached their duty of loyalty before they were fired and therefore, faced substantial liability.
Deleting electronic information can cause problems since traces of deleted files can still be detected. Many times, the information still exists on your computer. And if it is determined that you attempted to destroy evidence, you can have serious problems, which includes being in contempt of court. Courts will sometimes instruct a jury that it may assume that the information which was destroyed was incriminating. I have had cases where the best evidence in my case was evidence we did not have. (It was good because the jury’s imagination could run wild as to what the emails MIGHT have said.)
So, beating your non-compete might include defeating claims that you took employer files with you or that you were being disloyal. My advice: Don’t do anything you would not want presented in a court of law. Don’t send an email you wouldn’t want a judge to read or take information that belongs to your employer. Assume every email and electronic file will be found. Remember: You can delete, but you can’t hide.