In Aggreko, LLC v. Koronis, Civil Action No. 13-13034-TSH (D.Mass. December 19, 2013), plaintiff is a business filing suit against another business and its former employee, alleging breach of contract and a number of business torts. Plaintiff’s former employee, who is the named defendant, allegedly took proprietary information with him to a new company. Plaintiff sought a preliminary injunction to allow plaintiff’s computer forensics expert to examine all devices capable of storing electronic data within the former employee’s possession and control. Additionally, plaintiff sought to have defendant provide the passcode for his iPhone that the plaintiff had previously issued to the defendant former employee.
As this was a motion for preliminary injunction, the court assessed the eDiscovery issues based on four factors: (1) the likelihood of success on the merits, (2) the potential for irreparable harm if the injunction is denied, (3) the balance of hardships, and (4) any effects on the public interest. Additionally, in this case, defendants did not object to returning any confidential or proprietary information, and defendant former employee agreed to allow an examination of his electronic devices. In light of this and other factors, the court ordered a preliminary injunction with partial relief, and entered an order regarding ESI (among other issues):
- Defendants must return any electronic data that is property of plaintiff;
- Defendant former employee must account for information sent by his former work email to his personal email account, to return any electronic data in his possession, and to identify all electronic transmissions or physical deliveries of information;
- Plaintiff is to select a computer forensics expert to examine all computers, flash drives, smartphones, printers, cell phones and other devices capable of storing electronic data;
- Defendant former employee is to provide the iPhone password for his former work cell phone.