In Balancecxi, Inc. D/B/A Zacoustic v. International Consulting and Research Group, LLC, et al (W.D. Tex, Mar. 13, 2020), the Court granted plaintiffs’ motion to compel requiring defendants to produce all ESI, including metadata, and additional storage devices after finding that defendants’ discovery responses were insufficient in both form and content.
The lawsuit alleged that defendants stole trade secrets from, and violated their non-competition and non-solicitation agreements with, their former employer, the plaintiff. Defendants left their employment with plaintiff on January 15, 2019, and through a letter sent by its counsel, plaintiff directed defendants to return all company property, including their laptops. The letter contained a specific directive that:
“You must refrain from deleting or modifying any programs, data, or files on the above-referenced laptop computer, as these actions constitute not only spoliation of evidence but also the destruction of Company property. You must further refrain from making any copies of any source code, files, programs, or other intellectual property stored on the computer.”
Upon receipt of the laptops, plaintiff hired a computer forensics firm to perform a forensic analysis of the computers. That analysis showed that both defendants copied large numbers of files from their laptops using at least three separate storage devices. In addition, the forensic report showed that both defendants deployed the “CCleaner” software to delete thousands of files and folders from the laptop. According to the report, CCleaner was launched from a storage device and ran on the company laptop at least three times with at least 14,000 files and folders deleted from the computer.
In response to plaintiff’s written discovery, defendants did not produce any documents but stated that they would be willing to produce the external drives on which they saved their files from their work laptops. After months of failing to produce the hard drives and in response to a motion to compel, defendants finally produced the files in .pdf format.
In a subsequent motion to compel, plaintiff requested that defendants produce all responsive ESI in .TIFF format with a corresponding load file, containing metadata fields. In objection, defendants asserted that production of the records in .pdf format was sufficient. The Court disagreed with defendants and ruled that because the case involved the theft of trade secrets, as well as significant issues regarding defendants’ copying and deleting of files, metadata would likely be important to the case. As such, the Court ruled that plaintiff’s request for ESI in .TIFF format with a corresponding load file, containing metadata fields, was reasonable.